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ORATIONS ^ ESSAYS 

OF 

EDWARD JOHN PHELPS 

DIPLOMAT AND STATESMAN 

EDITED 

By J. G. McCULLOUGH 

WITH A MEMOIR 

By JOHN W. STEWART 




NEW YORK AND LONDON 

HARPER £r BROTHERS PUBLISHERS 
1901 



THE LIRRARy of! 

CONQRESS, I 

Two Cone* RcciivcbI 

MAY, 7 1901 I 

CorrwaHT iirrny 
CLASS fit/ XXo. N*. 

xyoU 

COPY A. 



.T 5 .3 



Copyright. 1901, by Harper & Brothers. 

Ail nghtt rtitntd. 

May, 19UI. 



CONTENTS 



PAGE 

Prefatory Note v 

Memoir vii 



-. ORATIONS ■ 

The Bennington Centennial 5 

Chief Justice Marshall 29 

United States Supreme Court and the Sovereignty 

OF the People 57 

Law as a Profession 71 

The Relation of Law to Justice 91 

Law of the Land 119 

International Relations 149 

Farewell to England 185 

Samuel Prentiss 193 

Isaac F. Redfield 219 

The Monroe Doctrine 235 

Equitable Estoppel 257 

ESSAYS 

The Constitution of the United States 285 

The Choice of Presidential Electors 349 

Bryce's American Commonwealth 371 

The Bering Sea Controversy .... 429 

The Age of Words 455 



PREFATORY NOTE 

The orations and essays of Mr. Phelps contained in 
this volume have been selected from a large number of his 
posthumous works. They cover a wide range of subjects, 
professional, literary, and biograj)hical, all treated with 
the same free hand and in liis customary clear, eloquent, 
and forceful style. The selections illustrate his stjie, 
his intellectual fibre, his unflinching courage, his strength, 
his mental grasp, his lofty and independent bearing in 
thought and action, and constitute a fitting memorial of 
the man. 

J. G. McC. 



MEMOIR 

of the seed of New England civilization of which this 
generation is reaping harvest. 

William Phelps emigrated from England to this 
country in 1630 and founded the historic town of Wind- 
sor, Connecticut. His descendants for several genera- 
tions filled prominent positions in civil life during the 
colonial period. John Phelps was an officer in the war 
of the American Revolution. Hon. Samuel S. Phelps, 
his son, was the father of Edward J. Phelps, and was a 
native of Litchfield, Connecticut. He graduated from 
Yale College in 181 1, and the year following removed to 
Middlebury, Vermont, where he resided until his death, 
in 1855. Soon after his arrival in Middlebury he was 
admitted to the bar, and entered at once upon a brill- 
iantly successful professional career, which culminated, 
while yet a yoinig man, in his elevation to the Supreme 
Court of the State. At the bar he was the acknowl- 
edged leader, and his judicial service was not less 
distinguished. His judicial utterances were models 
of style in clearness and force of statement. He re- 
signed from the bench to enter the United States 
Senate, in which he served twelve j^ears by election, 
and, later, one year by executive appointment, hi the 
roll of the Senate at that period are the names of Web- 
ster, Calhoun, Silas Wright, Chase, Benton, Clay, and 
others eminent if less famous. Chief Justice Chase 
once told the writer that in power of clear, convincing 
statement Judge Phelps was not excelled by any 
Senator of his time. 

Judge Phelps was what might be termed regal in 
person. Of commanding stature, to rare symmetry of 
form he added a dignity of bearing which always 
commanded attention and admiration. The writer 

viii 



MEMOIR 

has been thus particular in describing the mental and 
physical qualities of the sire, because the same charac- 
teristics reappeared in marked degree in his more 
distinguished son. 

Mr. Phelps's mother died in his childhood. None 
of her contemporaries are living, but the fragrance of 
her memory survives. In grace and beauty of person 
and character she was of the type of womanhood which 
attracts and attaches all who come within the sphere 
of its influence. 

From such stock came Edward John Phelps. 

He was born July ii, 1822; entered Middlebury 
College at the early age of fourteen, and graduated 
therefrom in 1840. He taught a family school in 
Virginia for a year. The year following he attended 
a course of lectures in New Haven Law School. Re- 
turning to Middleburj', he studied law in the office of 
Hon. Horatio Seymour, and was admitted to the bar in 
1843. He entered immediately upon the active practice 
of his profession. His success was instant and com- 
plete. 

His first appearance in court was marked bj' the 
same easy grace, perfect self-possession, self-masterj', 
clear perception and statement of points in question, 
and the same play of wit and apt illustration which 
distinguished his professional efforts in his mature 
and later life. He seemed to the writer, who was a 
youtliful witness of his earliest efforts, to spring into 
the arena fully trained and equipped, versatile in gifts, 
with every faculty alert, and under instant and ab- 
solute control. 

He was not a case lawyer. He was a great law^^er. 
He understood law as a science. He was thoroughly 

ix 



MEMOIR 

grounded in its great fundamental principles. He 
could analyze and generalize equally well. He easily 
made his way, through intricacies which puzzle and 
confound the mere case lawj-er, to the fundamental 
principle which solved the problem. He would have 
made an admirable Chief Justice of the United States 
Supreme Court, an office he deserved and would have 
received but for the interference of a miserable political 
cabal. That great office would have been the fitting 
close of his professional career. 

As it was, however, it had brilliant culmination in 
the great international tribunal at Paris, on the Be- 
ring Sea controversy. Under appointment by Presi- 
dent Harrison, in 1893, he served as senior counsel 
for the United States government in that august covirt. 
His closing argument, extending over a period of eleven 
days, and covering three hundred and twenty-five 
printed pages of the official report of the proceedings, 
was an exhaustive, learned, and statesmanlike review 
of the history of the case, and of the j^rinciples of in- 
ternational law applicable thereto. At the close of 
the argument, M. de Courcelles, the president of the 
tribiuial, said to Mr. Phelps, in the name of the Court, 
after allusion to the difficult part he had discharged : 
" It (the task) has been discharged in such a manner 
as fully to deserve our admiration, blending the deep 
science of the lawyer with literary refinement and 
diplomatic dignitj'. I beg I may be allowed to consider 
the laurel you have won at this cosmopolitan bar as a 
fair addition to the wreath of honors you have con- 
quered on different fields, both in the New and the 
Old World." 

But it should be said that Mr. Phelps was more than 



MEMOIR 

a mere lawyer. He possessed those gifts of wit and 
fancy which enriched and enhvened the driest themes. 
His tact was equal to his wit. He would flash a play- 
ful, mirth-provoking ilkistration into an erudite dis- 
cussion of a legal problem, to the amused relief of a 
grave Court, and pass on without a break in the 
severe logic of his argument. 

Who but Mr. Phelps could have convulsed Court and 
Bar by inimitably fiuinj' comments on the dry doctrine 
of estoppel en pais in a Vermont cause celehre, now 
historic? 

His able and scholarly address on Chief Justice 
Marshall before the American Bar Association, at 
Saratoga, in 1879, commanded the enthusiastic ad- 
miration of representative lawyers assembled from all 
parts of the country, and extended his reputation, not 
only as an able lawj-er, but also as a man of broad 
literary culture and statesmanlike quality. 

General recognition of his eminent ability and ac- 
complishments came to him later in his life. He was 
more than three-score years old, in 188,5, ^\■hen Pres- 
ident Cleveland sent him to the Court of St. James as 
resident American Minister. With what unqualified 
success he acquitted himself in this arena is known and 
acknowledged on both sides of the Atlantic. In the 
new and broader field of diplomacj' and statesmanshii) 
his success was as eminent as in his professional life. 

He was a master in the art of letter-writing. His 
familiar letters are charming and inimitable, hi these 
he gave fidl play to his wit and fancv. They reveal 
the sweet, genial temper of the man no less than his 
versatility. 

The same qualities pervaded his familiar conversa- 

xi 



MEMOIR 

tion. His discourse, oral and written, was clear, con- 
cise, and elegant. 

He had such mental integrity' and clearness of men- 
tal vision, such facility and felicitj" of expression, such 
aptitude in illustration, such sense of fitness which 
sureh' set limit to undue and imwise extravagances 
of thought or expression, such culture and learning, 
combined with such genial, graceful, and winning 
personality, that he possessed the rare requisites of a 
born teacher, for the term nascitur non fit applies 
to the teacher not less than to the poet. His lectures 
on medical jurisprudence in the Vermont Universit}', 
on constitutional law at Harvard University, and at 
Yale as Kent professor of law from 1881 to the date 
of his death, at New Haven, March 9, 1900, illustrated 
his peculiar gifts as a teacher. 

In the class-room his exposition of recondite themes 
was masterly; stripping them of technical verbiage, 
he laid bare in clear, simple terms the basic principle, 
and inquiry could go no further. Nor was such ex- 
position ever barren, but always enlivened at intervals 
by some witty or humorous turn, which, while it amused 
his pupil, served also to emphasize the point in hand. 
He loved the law and could vitalize its principles. 
In the class-room his very personality was an inspira- 
tion. 

He was artistic in temperament in every fibre of his 
being. He was affluent in .sympathy with the best 
and most beautiful in art and nature and humanity. 
He was high-souled, and so was fastidious. He loved 
what was most beautiful and harmonious in the com- 
position of colors, what was most graceful and sym- 
metrical in form. 

xii 



MEMOIR 

He loved the mountains of Vermont. He loved the 
forests that crown them and the brooks that wind and 
sing beneath their shade. He loved the wild note of 
the hermit tliriish and the odor of the woods. 

He loved music, especially the old melodies which 
so sweetly interpret the old ballads of England, Scot- 
land, and Ireland. 

A nature so keenl}^ attuned to harmonies must be 
sensitive to discords, and he had instinctive dislike 
of every shade of vulgarity, and hatred of shams and 
hj'pocrisy. He was guiltless of pretence; he alwavs 
had the courage of his convictions and was fearless in 
their expression. 

He loved his friends with loyal steadfastness. In 
their sorrows and trials he was as tender and S3'm- 
pathetic as a woman. His courtesy was unfailing. 
His wit never woiuided nor offended. It was imper- 
sonal. 

He loved and was familiar with the best English 
literature. His vigorous, trained intellect, his literary 
culture, his artistic temperament, and his great ver- 
satility would have insured his success in any field 
of intellectual effort. Among the distinguished states- 
men, scholars, and lawyers who constitute the ofiicial 
life of England Mr. Phelps was an acknowledged peer. 
And at a banquet given by them in his honor, in 1889, 
at the close of his official service, he bade farewell to 
his friends and to England in a short, wholly" impromptu 
speech of matchless grace and elegance. Lord Rose- 
bery wrote the same evening to the gracious ladj- 
who for more than half a century shared the life of the 
guest of the occasion, and who still survives him, as 
follows : 

xiii 



MEMOIR 

"I cannot go to bed without sending you a line of 
congratulation on ywir great triumph of to-night. 
The assembly was unique in its character and its 
warmth ; and what it gave in enthusiasm, Mr. Phelps 
restored in a speech so exquisite, that, on an occasion 
which seemed beyond the reach of eloquence to improve, 
it crowned the sensations of the audience. The only 
thing wanting was j'our presence." 

The unfeigned regret of his English friends at his 
departure was mingled with expressions of sincere 
personal regard and respectful admiration for the 
man who had so ably and tactfully- discharged the 
delicate and difficult functions of representative of 
this great government at the Court of St. James. 

While Mr. Phelps's surviving friends are justly proud 
of his splendid record, yet not for that alone or chiefly 
will those who knew him best cherish his memory, 
but more and rather for what he was to them in his 
charming personalit}-. 

He has gone. "His works do follow him." In 
his few (alas! too few) public addresses, thrown off at 
intervals in a busy professional life, he has left an 
enduring memorial of his mental powers and accom- 
plishments. Valuable as they are, both in style and 
substance, they rather suggest the idea of how much 
more he might have done in the same line had he given 
his rare powers e.Kclusively to the work of a litter alert r 
and publicist. Few men possess such a range of 
diversified gifts. Fewer still attain success in so 
many diverse fields of mental effort. From the begin- 
ning to the end of his long career his intellectual growth 
was continuous. He never sought office nor honors. 

xiv 



MEMOIR 

When from time to time they came to him unsoHcited, 
he took up the burden of attendant responsibihty with 
an easy confidence in himself quite remote from any 
feehng of overweening vanity'. He rose to the demand 
of each occasion as it came, with serene assurance of a 
success which never failed. 

His work as a lawyer, teacher, publicist, litterateur 
has passed into history, the common legacy of the 
race. The memorj^ of his rare personality, his delight- 
ful, genial companionship, his loyal friendship, abides 
and will remain the cherished inheritance of those 
who best Iviiew Edward J. Phelps, and could call him 
by the sacred name of friend. 

John W. Stewart. 



I 

ORATION 

DELIVERED AT BENNINGTON, VERMONT, AUGUST I9, 189I 
AT THE DEDICATION OF THE 

BENNINGTON BATTLE MONUMENT 



THE BENNINGTON CENTENNIAL 



Vermont consecrates to-day her first liistoric 
monument. But not hers alone. New Hampshire 
and Massachusetts, who fought with her and for her 
at Bennington, have joined in erecting this memorial 
of their common history. And they are here, by a 
splendid representation, to share in the triumph of its 
completion, and to give to the occasion, by the distinc- 
tion of their presence, a higher dignity, a more gener- 
ous grace. 

The day has a still larger significance. It is trebly 
fortunate. It marks not only the anniversary of the 
battle, and the hajipy consummation in this structure 
of the exertions of fifteen years, but likewise the cen- 
tennial of the entrance of Vermont into the Federal 
Union. It unites in its suggestions the great memories 
and the great hope in the life of our commonwealth, 
the expiring century and the limitless fviture. It is 
fit that we should signalize such an occasion. Well 
may Vermont throw open this day her gates and her 
heart. Well may she call her children home. And 
with a display uncommon to her simple life, with 
trumpets, and banners, and acclamations, and the 
triumphant voice of cannon, offer imbounded welcome 
to the great concourse that has gathered to her festival. 

5 



ORATIONS AND ESSAYS 

It is appropriate and gralif5nng that the chief magis- 
trate of the nation should be at such a time our most 
honored guest. In this scene, party differences are 
forgotten. We are only Americans. And in loj'alty 
to that great office, and respect for the incumbent who 
fills it so well, we are all tliis day on the President's 
side. 

History is full of battles. All its pages are stained 
with blood. Instruments, for the most part, of am- 
bition, of tyranny, and of crime. It would have been 
well for the world to be spared the misery the}' 
wrought. It woidd be well for its histor}' if their 
memorjr could perish. But there have been battles 
nevertheless whose smoke went up like incense; con- 
secrated in the sight of Heaven by the cause they 
maintained. Such was that for which this shaft shall 
henceforth stand. 

If battles were to be accounted great in proportion to 
the nimibers engaged, Bennington would be but small. 
In comparison with Marathon, and Waterloo, and 
Gettysburg, it was in that view only an affair of out- 
posts. But it is not numbers alone that give importance 
to battle-fields. The fame of Thermopylae would not 
have survived had the Greeks been a great armj^ in- 
stead of three hvmdred. It is the cause that is fought 
for, the heroism and self-sacrifice displayed, and the 
consequences which follow, moral and political as well 
as military, that give significance to conflicts of arms. 
Judged by these standards, Bennington ma}^ well be 
reckoned among the memorable battles of the world. 

It was, on our side, the people's fight. No govern- 
ment directed or supplied it ; no regular force was con- 

6 



THE BENNINGTON CENTENNIAL 

ceined ; it was a part of no organized campaign. New 
Hampsliire sent her hastily embodied militia, not the 
less vokmteers. In Vermont and Massachusetts it 
was the spontaneous uprising of a rural and peace- 
loving population, to resist invasion, to defend their 
homes, to vindicate their right of self-government. 
Lexington and Bunker Hill were in tliis respect its only- 
parallels in the Revolutionary war. 

The march of Burgoyne from Canada to the Hudson 
had been till then a continuous victory. He was a 
brave and skilful soldier, leading a well-appointed and 
powerful army. Ticonderoga, the key and stronghold 
of the northern frontier, had fallen unexpectedly without 
a blow. The Vermonters retreating thence had been 
overtaken and utterly defeated at Hubbardton. The 
advance of the British to Stillwater had been almost 
unopposed ; and there was as yet no promise of effect- 
ual resistance. Even Washington, steel-proof against 
despair, wrote that he saw not how Burgoyne's march 
to Albany could be checked. 

The situation of the inhabitants of the Hampshire 
Grants was most critical. Their whole frontier was 
open to the incursions of an enemy whose allies were 
savages. They had been totally neglected by Congress ; 
not a step had been taken for their relief. Scattered 
sparsely through the country upon their farms, without 
any organized State government, almost destitute of 
the material of war, except the firearms in their houses, 
they still had no thought of flight or submission. They 
called upon God first, in a day of fasting and prayer, 
appointed by their Convention, and not only appointed 
but solemnly kept. And then they called upon New 
Hampshire and John Stark. New Hampshire, ablaze 

7 



ORATIONS AND ESSAYS 

with patriotic feeling, issued instant orders for her 
mihtia to march. Stark's reply was brief, for he was 
not a man of words. "I am on the way," said he, 
"with all the men I can muster." With the eye of a 
born soldier, he saw that the Vermonters were right when 
the}' declared, that there could be no frontier but a 
frontier of armed men. That the Hampshire Grants 
must be held, because no enemy could be resisted to 
whom the gates of the country were thus thrown open. 
And that the effectual blow against Burgoyne must 
be struck on his flank. 

Full justice has been done, in history- and tradition, 
to the bravery and the patriotism of John Stark. But 
his great qualities as a general have not been set forth 
as they deserve. No better piece of military work 
was seen in the Revolution than he did in that brief 
and sudden campaign. He concentrated the scattered 
militia at Charleston with a rapidity that was mar- 
vellous. He was impeded by the want of the most 
necessary and ordinary supplies. Detained, he wrote 
for lack of bullet moulds; "but one pair in town;" 
for they had their own bullets to cast; destitute, he 
wrote again, even of camp kettles; striving in vain to 
get three or four field -pieces mounted; the powder 
he had depended upon half spoiled. Yet, receiving 
his orders on the 22d of Juh', while the militia were all 
at their homes, he marched with the last of them from 
Charleston, on the 3d of August. On the 7th he was 
at Manchester, through the wilderness and across 
the Green Mountains, by incapable roads, and with- 
out any adequate transportation. On the 9th he was 
at Bennington, with his own forces and the Mas- 
sachusetts and Vennont men organized and in hand. 

S 



THE BENNINGTON CENTENNIAL 

On the 13th he engaged the enem^-; on the i6th the 
battle was fought. If there had been no battle at all, 
such celerity and jirecision of movement, with an ir- 
regular force, in the face of such difficulties, would 
alone have been generalship of the highest order. 

At Manchester he was met by a peremptory order 
from Congress to march at once to join Schu^-ler, 
leaving the Grants to their fate. He refused to obey 
it. The cause was more to him than Congress, and 
he understood its necessities better than they did. 
On the 19th, three days after the battle, but before the 
news of it had reached them, that body adopted a 
resolution that his conduct was prejudicial to discipline, 
and injurious to the common cause, and demanding 
of New Hampshire to revoke the orders under which 
he was acting. Three days later, thev sent him a 
vote of thanks, their only contribution to the victory 
that caused the destruction of Burgoyne. 

Meanwhile the men of the Grants had not been idle. 
Every nerve had been strained in their own behalf. 
The Council of Safety, improvised for the occasion, 
.sat continuously at Bennington, assuming all the 
powers of government. Every available man turned 
out. No woman bid husband, son, or brother stay. 
Such scanty supplies as by the utmost exertion could 
be collected, were thrown into the common stock. 
The very daj' before the battle, expresses were sent 
out through the farm-houses to gather lead, " urgently 
needed," said the Council. The woods were on fire. 
Not with the transient blaze that sweeps through the 
dry leaves and is gone, but with the deep, unquencha- 
ble combustion that burns in the roots and the earth. 

Of the stores that had been previously gathered at 

9 



ORATIONS AND ESSAYS 

Bennington, much has been said, and but Httle is 
known. Their importance has probably been ex- 
aggerated. That Burgoj-ne needed them, such as 
they were, and desired still more to deprive his enemy 
of them, may be true. But they were bj^ no means 
the principal object of the expedition he sent out, al- 
together disproportioned to so small a matter. He 
saw as clearly as Stark did that his left was the dan- 
gerous quarter. It was not the feeble resistance before 
him that he was afraid of, which had not j-et fired an 
effectual shot. It was what he well called " the gather- 
ing storm that was hanging on his left. " He perceived 
that he must strike a blow in that quarter which v\ould 
put down opposition, and make safe his flank and 
his rear. He meant to mount his dismounted dragoons 
on horses obtained in the Grants, and to occupy and 
secure that ground. The troops he sent out were 
therefore choice and well commanded, and followed 
b}' a strong support. And their orders were, not 
merely to capture Bennington, but to cross the countrj' 
to Rockingham, and thence march to Albany. 

The British commander proceeded with the caution 
the importance of his expedition demanded. When 
he found that he must fight, and perceived the resolute 
and thorough soldiership of Stark's movements, he 
chose a position with excellent judgment, intrenched 
himself strongly, and placed his troops and his guns 
to the best advantage. Stark could not wait, as he 
would have done, for his enemy's advance. He was 
unable to subsist his ill-provided forces long, nor could 
he keep them from homes that were suffering for their 
presence. His only chance was to attack at once, 
and his dispositions for it, most abh' seconded by 

10 



THE BENNINGTON CENTENNIAL 

Warner, his right-hand man, were masterly beyond 
criticism. He had no artillery, no cavalry, no trans- 
portation, no commissariat but the ^vomen on the 
farms. Half of his troops were without bayonets, 
and even ammimition had to be husbanded. He 
lacked everything but men, and his men lacked 
everything but hardihood and indomitable resolu- 
tion. Upon all known rules and experience of war- 
fare, the successful storming, by a hastily organ- 
ized militia, of an intrenched position at the top of a 
hill, held by an adequate regular force, would have 
been declared impossible. But it was the impossible 
that happened, in a rout of the veterans that amounted 
to destruction. History and literature, eloquence 
and poetry have combined to enshrine in the memory 
of mankind those decisive charges, at critical moments, 
by which great battles have been won and epochs in 
the life of nations determined. I set against the splen- 
dor of them all that final onset up yonder hill and over 
its breastworks of those New England farmers, on 
whose faces desperation had kindled the supernatural 
light of battle which never shines in vain. That field 
was the last hope of the Hampshire Grants. They 
were fighting for all they had on earth, whether of 
possessions or of rights. They could not go home 
defeated, for they would have had no homes to go to. 
The desolate land that Burgoyne would have left 
New York would have taken. Not a man was there 
by compulsion, or upon the slightest expectation of 
personal advantage or reward. The spirit which 
made the day possible was shown in that Stephen 
Fay, of Bennington, who had five sons in the fight. 
When the first-born was brought home to him dead, 

II 



ORATIONS AND ESSAYS 

"I thank God," he said, "that I had a son wiHing 
to give his hfe for his country." 

Such, in merest and briefest outhne, was Benning- 
ton. Its stor3', imperfectly preserved, comes down to us 
only in flashes, but they are flashes of glorious light. 
Its consequences were immediate and far-reaching. It 
was the first success of the Revolution which bore an}' 
fruit. Its guns sounded the first notes in the knell 
which announced that the power of Great Britain 
over the colonies she had created and had .sacrificed 
was passing away. Burgoyne heard it, and knew 
what it meant. Washington heard it, and, hearing, 
took heart again. Confidence replaced despair. Gates 
succeeded Schuyler in command at Saratoga, and 
the militia jioured into his camp. The invincibilitj' 
of the British commander was gone. He fought 
desperately, but in vain. On the 17th of October he 
surrendered. 

If Bennington had not been fought, or had been 
fought without success, the junction between Clinton 
and Burgoyne could not have been prevented, and his 
surrender would not have taken place. "If I had 
succeeded there," he wrote to his government, "I 
should have marched to Albany." 

But Bennington was only an episode in the early 
life of Vermont. Striking, heroic, conspicuous, yet 
still but an epi-sode. The outbreak of the Revolution 
found the people of the Hampshire Grants already 
engaged in a contest with the powerful Colony of New 
York, which had for ten years taxed their utmost 
resources. The first to occupy the unbroken wilder- 
ness which is now Vermont, they had taken and paid 

12 



THE BENNINGTON CENTENNIAL 

for their titles to the lands, as a part of the Colony of 
New Hampshire, under regular grants from its gov- 
ernor as vicegerent of the British Crown. They had 
organized townships, built roads, cleared forests, and 
established their homes. Up to that time the territory 
had been universally regarded as a part of New Hamp- 
shire, and the early maps so laid it down. New York, 
for more than a hundred years from the date of her 
charter, had attempted no jurisdiction over it. But 
after the New Hampshire grants had been made and 
occupied, New York set up the claim that her eastern 
boundar}?^ was the Connecticut River. The line be- 
tween that province and New Hampshire was so loose- 
ly defined in the charters, issued when the geography 
of the country was almost imknown, that it was im- 
possible to be determined by their language. The 
charters were, in fact, conflicting. The greater in- 
fluence of New York, and her better means of prosecut- 
ing her case before the Privy Council, obtained from 
the Crown, in 1764, an order establishing the Con- 
necticut as the dividing line. But tliis was only the 
arbitrary adjustment of a boundary, incapable of other 
settlement. Its legal effect was prospective, not re- 
troactive. It established jurisdiction, it did not in- 
validate titles previousl}'^ vested, under which a prior 
and adverse possession existed, and which had been 
derived from the common source of title, the King, of 
whom the contesting governors were alike the agents, 
and while the territory was de facto a part of New 
Hampshire. Nor was it the intention of the Crown or 
of the Privy Coiuicil that it should have such an effect. 
When in 1767, three years later, the settlers, resisting 
the efforts of New York to confiscate their lands, suc- 

13 



ORATIONS AND ESSAYS 

ceeded by great exertions in bringing the case again 
before that body, upon its unanimous and emphatic 
judgment, further grants by New York of lands granted 
by New Hampshire prior to 1764 were positively pro- 
hibited b}^ the King. 

Notwithstanding this explicit order, the Colonial 
government of New York continued to make grants, 
in large quantities, of lands occupied adverse^ under 
the New Hampshire titles, without the least regard 
to the rights of the inhabitants, or the distressing 
consequences in which they would be involved. These 
grants were made not to settlers, but to speculators 
and political favorites, upon payment of enormous 
fees to the governor. Not even compensation was 
offered for the improvements which had given the lands 
all the value they had, re.scued them from the savage 
and the wild beast, and made them habitable bj' man. 
No greater outrage had been attempted under the forms 
of English law since the days of Jeffrey's. It would 
not onty have been in violation of fundamental prin- 
ciples if it had been done bj^ the Crown, but it 
was in direct contravention of the orders of the 
Crown, based upon the judgment of the Privj^ 
Council. 

The occupants of the Hampshire Grants had no 
means of legal resistance. They were without money, 
withovit counsel, without influence. They made one 
effort at defence in a suit tried at Alban}', but soon found 
they had no justice to expect in that quarter. Then 
they set the authority of New York at defiance, and 
resolved to protect themselves. Sheriffs who came 
into the Grants to execute writs were turned back. 
Militia sent to support them were repulsed. Rights 

14 



THE BENNINGTON CENTENNIAL 

which the law should have defended were maintained 
by force. 

But with the first guns of the Revolution, the people 
of the Grants threw themselves into that struggle, 
without regard to its effect upon the contest, to them 
much more important, in which they were already 
engaged. Ticonderoga was taken bj^ Ethan Allen, 
and Crown Point by Warner. They marched in force 
upon the disastrous expedition against Canada, where 
Allen was left a prisoner. They turned out on the 
approach of Burgoyne to garrison Ticonderoga, in 
such strength that men enough were not left at home 
to transport the supplies, which, out of their slender re- 
sources, they poured into that fortress. They were 
with Arnold in his desperate battles on Lake Cham- 
plain. They fought under Warner at Hubbardton, 
before Bennington, and with Gates at Bemis Heights 
and Saratoga afterwards. They pursued the British 
who retreated from Ticonderoga after Burgoyne's 
surrender, capturing the last prisoners, and firing the 
last shots at the remains of that expedition. 

When the authority of Great Britain was thrown 
off b}' the Declaration of Independence, the organiza- 
tion of a separate government by the inhabitants 
of the Grants became unavoidable. The jurisdiction 
of New Hampshire over them had ceased after the 
royal order of 1764, and with New York they were 
at war. As earh' as July, 1776, in convention as- 
sembled at Dorset, they adopted articles of association 
for the purposes of the war as well as of domestic 
government. In January, 1777, they resolved to form 
an independent State under the name of New Con- 

15 



ORATIONS AND ESSAYS 

necticut, declaring it to be necessary for protection 
against the British, as well as against New York. 
In June, 1777, a committee was appointed to draft a 
constitution, and the name of Vermont was adopted. 
In July following, the constitution was ratified, and 
at the first election held under it, Thomas Chittenden 
was made governor. 

That first constitution of Vermont cannot be read 
without admiration. I i)ity the man who, in view 
of the time and the circumstances of its composition, 
can read it without sensibilitj'. Framed by a rural 
people, in hardship and poverty, a foreign enemy 
at their very gates, a still more inveterate foe in the 
sister province that should have been their protector. 
Its authors neither statesmen nor lawyers, untrained 
in political science or literary accomplishment, but 
one of them having ever .sat in a legislative assembly 
before. They were only doing their best under every 
discouragement, with such slender acquirements as 
they had, towards the foundation of a government that 
might command the respect of mankind. The con- 
stitution of Pennsj'lvania, adopted the year before, 
was doubtless in a considerable degree their model. 
But there was much in their work that was original. 
And it displayed a breadth and elevation of view, 
a profound sagacity, an independence of thought, and 
a sublime faith, not reasonably to be looked for in 
such an assembly. It would be an interesting task 
to review this constitution, if the flying hour al- 
lowed. Two or three points only can be most briefly 
touched. 

It contained the first prohibition of slavery ever put 
forth on this continent, through all parts of which 

16 



THE BENNINGTON CENTENNIAL 

the institution was at that time legal. The language 
is worthy of quotation : 

" That all men are born equally free and independ- 
ent, and have certain natural, inherent and un- 
alienable rights; amongst which are the enjoying 
and defending life and liberty; acquiring, possessing 
and protecting property; and pursuing and obtaining 
happiness and safety. Therefore, no male person 
born in this country or brought from over sea, ought 
to be holden by law to serve any person as a servant, 
slave or apprentice, after he arrives to the age of twenty 
one years ; nor female in like manner after she arrives 
to the age of eighteen years; unless they are bound 
by their own consent after they arrive to such age; 
or bound by law for the payment of debts, damages, 
fines, costs or the like." 

I may pause to read one other paper, on the same 
subject, that has found its way down to us like a scat- 
tered leaf from the foliage of a departed year. When 
in November, 1777, a slave woman and her child fell 
into the hands of a company of Vermonters, com- 
manded by Ebenezer Allen, who had fought with great 
distinction at Bennington, he gave her this writing, 
and set her free : 

"To whom it may concern, know ye : whereas Dinah 
a negro woman with her child of two months old was 
taken prisoner on Lake Champlain with the British 
troops the 12th day of inst. November by a scout under 
my command; and according to a resolve passed by 
the Honorable Continental Congress that all prizes 
belong to the captivators thereof, therefor she and 
her child become the just property of the captivators 
B 17 



ORATIONS AND ESSAYS 

thereof: I being conscihentious that it is not right in 
the sight of God to keep slaves: therefore obtaining 
leave from the detachment under my command to give 
her and her child their freedom. I do therefore give 
the said Dinah and her child their freedom, to pass and 
repass anywhere through the United States of Amer- 
ica, with her behaving as becometh, and to trade and 
traffic for herself and child, as though she were born 
free, without being molested by an}' person. 

In witness whereunto I have set my hand and sub- 
scribed my name, 

Ebenezer Allen, 

Capt. in Col. Herrick's Regt. of Green Mountain Boys." 

There is not much lawyership in the form of this 
document. It is neither elegant in style nor faultless 
in orthography. But perhaps it has found record 
where such deficiencies are overlooked. 

Another article in that first constitution should not 
be passed by in silence. Its authors appear to have 
seen with a prophetic eye, when they founded free 
government, that its greatest danger was like to be 
the greed for office, which turns places of public trust 
into the spoils of party, and the opportunities for 
plunder. And they adopted this clause : 

"As ever}^ freeman to preserve his independence 
(if without a sufficient estate,) ought to have some 
profession, calling, trade or farm whereby he may 
honestly subsist, there can be no necessity for nor use 
in establishing offices of profit, the usual effects of 
which are dependence and servility unbecoming free- 
men in the possessors or expectants, faction, con- 
tention, corruption and disorder among the people. 

i8 



THE BENNINGTON CENTENNIAL 

But if anj' man is called into public service to the 
prejudice of his private affairs, he has a right to 
a reasonable compensation ; and whenever an office 
through increase of fees or otherwise becomes so prof- 
itable as to occasion many to ajiply for it, the profits 
ought to be lessened by the Legislature." 

We have lived to see the prohibition of slavery in 
the earliest constitution of Vermont become a part of 
the fundamental law of this nation. May the time be 
not far off when its declaration against that other and 
more widespread curse which corrupts and degrades 
free government shall be likewise put in force by the 
body of the American people. 

One more provision in this instrument may be 
quoted. From each representative in the Legislature 
was required, before taking his seat, this declaration : 

"You do believe in one God, the Creator and Gover- 
nor of the universe, the rewarder of the good and pun- 
isher of the wicked. And 3'ou do acknowledge the 
Scriptures of the Old and New Testament to be given 
by Divine inspiration : and do own and profess the 
Protestant Religion." 

Under this constitution, Vermont, already for thir- 
teen years an independent community, became an 
independent State, subject to no national jurisdiction. 
She exercised, from 1777 to 1791, all the powers of sov- 
ereignty, and maintained herself against New York, 
against Congress, and against the LInion. She fought 
through the Revolution on her own account, and, with 
the help of Massachusetts and New Hampshire, de- 
fended herself. The State flag that still flies over 
us was the flag of that earliest day. No other State 
in the American Federation, .save Texas, ever had 

19 



ORATIONS AND ESSAYS 

an independent existence. All others were in their 
beginning either colonies of a foreign power or ter- 
ritories of the United States. Till the ver}^ last, both 
during and after the Revolution, the majority of Con- 
gress was against her, swayed by the power and in- 
fluence of New York. Represented neither in Con- 
gress nor in the Legislature of New York, and without 
means or influence to make herself felt in either body, 
recognition of her independence and her admission 
to the Union were continuously refused, and the title 
of her people to the homes the}' occupied denied. The 
contest of the Colonies in the Revolution was against 
taxation without representation. That of Vermont, 
through the war and for eight years afterwards, was 
against confiscation without representation. No op- 
pression charged upon Great Britain by America 
approached that sought to be visited by Congress and 
New York upon Vermont, while she was fighting side 
by side with them, to her last man and last dollar, 
in the struggle for national independence. 

The history of the early life of Vermont is a grand 
and inspiriting history. No words of mine in these 
brief moments can justly characterize it. We find 
it difficult at first, in trying to understand it, to raise 
ourselves to its plane, and to view it in the light of its 
own time rather than of ours. Accustomed to see 
self-interest predominant, and individual success the 
universal goal, we are involuntarily groping after 
motives and springs of action in the builders of our 
State, which had no existence among them. We do 
not rightly comprehend what thej' did, until we come 
gradually to realize the absolutely unselfish devotion, 
the genuine and unalloyed patriotism, the ardent love 

20 



THE BENNINGTON CENTENNIAL 

of libertj', of those plain, unassuming, upright, resohite, 
God-fearing men, who were striving to the uttermost, 
not for place or distinction, or weaUh or power, but to 
achieve self-government, to establish homes, to create 
civil institutions that should be trul^' free, salutary, 
and enduring. The more closely we study their lives 
and their works, the greater is our admiration for their 
character and their capacity. 

In 1791 Vermont's long controversy reached an 
end. The justice of her cause gradually made itself 
felt, both in Congress and in the Legislature of New 
York. It came to be seen that her right to self-govern- 
ment ought not to be denied, nor her institutions over- 
thrown, nor the lands of her people taken from them, 
and that such results could only be attained by a war 
of extermination. Her demands were finally conceded. 
An amicable adjustment was made with New York, 
and a hundred years of luibroken friendship between 
these neighboring States has long obliterated all 
trace of the old-time bitterness. On the 1 8th of Feb- 
ruary, 1791, an act unanimously adopted by Congress 
for the admission of Vermont to the Union was signed 
by the hand of Washington. 

So came Vermont at last, a hundred years ago, into 
the sisterhood of the States. Latest of existing com- 
monwealths to join it ; first accession to the old Thirteen. 
No remnants of colonial magnificence adorned her 
approach. No traditions of Old World aristocracy 
gave distinction to her presence or grace to her society. 
No potency in national politics attracted the parasites 
of the hour. The luxuries of wealth were unknown 
to her. For the elegance of high culture she had 

21 



ORATIONS AND ESSAYS 

found little opportunity. Rustic and sh\', but pict- 
uresque, shadowed bj' the memories of a trying ex- 
perience, unconquerable in spirit, proud of her un- 
tarnished history, and half reluctant to surrender the 
independence that had cost so much and been cherished 
so long. But she came to remain. She has sought 
no divorce from the Union to which, on the altar of the 
new Constitution, she then plighted her troth. When 
those who had been among the foremost in creating 
that Union, and should have been the last to assail it, 
yet essayed its destruction, thirty -four thousand of 
her young manhood, almost a tithe of her people, 
went out in its defence. And in all that widespread 
and terrible conflict there was no battle-ground on 
which her children are not buried. Her life, whether 
in peace or in war, through all the century that now 
closes upon us, has been not only in the Union, but 
for the Union. The high places, the distinctions, 
the ambitions, the emoluments of the national gov- 
ernment, have been chieflj^ for others — not for her. 
She has neither claimed them, nor sought them, nor 
desired them. Content to stand and to wait, and, 
when service was demanded, never to be found want- 
ing. Less affluent in production than lands that 
lie nearer the sun, she has been the nursery of men 
who have carried into other commonwealths the 
strength of her hills, and have fertilized, b}- their in- 
telligence, their energy, and their character, all the 
States whose gathering stars now fill to overflowing 
the field of the national ensign. It is not on this spot 
alone that these memories are revived. The sons of 
Vermont are not all here. The multitude that sur- 
rounds us is but a handful. In all the cities and ham- 

22 



THE BENNINGTON CENTENNIAL 

lets of the Western plain, on savanna, and prairie, 
and river, and hill-side, in fields innumerable, golden 
with the harvest, wherever on this continent there is 
work to be done or enterprise to be carried forward, 
there they are, and there will this day and its cere- 
monies be remembered, and its inspiration felt. 

And now, mj' fellow-citizens, our task draws to its 
conclusion. The public spirit and the persistent 
efforts of all these years have found their reward 
in the structure that stands before us. Many, alas! 
how many, of those who in its foundation have shared 
our labors and guided our counsels, and who looked 
forward with us hopefully to their consummation, 
have not waited for this day, but are gone on before. 
The circle that is left to exchange these congratulations 
is painfull}' narrowed. But the work is done. Com- 
mitting it now to the care of the State, with whose 
existence we trust it will be coeval, our concern with it 
terminates, and our duty is discharged. Its stately 
proportions rise away from us into the upper air — our 
monument no longer. Not for us nor for our time is 
it henceforth raised on high. Long before it shall 
cease to be reckoned as j'oung we and our children 
will have disappeared from the scene. It is our mes- 
senger to posterity. Here it shall wait for them, 
while the successive generations shall be born and 
die. Here it shall wait for them, through the even- 
ings and the mornings that shall be all the days that 
are to come. Crowned with the snows of countless 
winters; beautiful in the sunlight and the shadows 
of unnumbered summers; companion of the moiui- 
lains wliich look down upon it, whose height it emu- 

23 



ORATIONS AND ESSAYS 

lates, whose strength it typifies, whose history it de- 
clares. 

The earth is studded with monuments. From the 
earhest period of recorded time mankind has striven 
for a language more durable than words, in which 
human memories might be perpetuated. They have 
found it chiefly in the sj'mbolism of monumental ar- 
chitecture. But for the employment of that language 
there must be sentiments to be transmitted worthy 
of its grandeur. In those lie the appeal to futurity, 
not in the medium of expression, however powerful 
or impressive. And therefore it is that the most 
imposing and venerable of such structures known 
to the world only stand silently over the grave of 
the dead past. They have no history to relate, no 
lesson to teach. Solitary relics of a race that is ex- 
tinct, a civilization that has perished, institutions that 
have disappeared, cities and temples that have re- 
turned to the dust, to research and to imagination they 
are equally dumb. The desolation of the desert sur- 
rounds them. We regard them with wonder, but 
without instruction. 

Not such the destiny of the memorial we dedicate 
here. Its grand silence shall be perpetually eloquent ; 
its teaching shall never cease. It shall carry forward 
the history of those early daj^s, of all that made Ben- 
nington heroic, and all that Bennington brought to 
pass. It shall tell the story not only of Stark and 
Warner, and Chittenden and Symonds, the Aliens 
and the Faj's and the Robinsons, and their compeers, 
but of that multitude of their humbler associates, 
less conspicuous; but just as devoted, who lived and 
who died for Vermont, whose names are only written 

24 



THE BENNINGTON CENTENNIAL 

in the memory of God. The child shall learn from 
these stones the first instincts of patriotism. The 
wayfarer to whose ear our English tongue convej'S 
no sense, shall not fail of their meaning. And all 
the dwellers upon the soil, as the years go on, .shall 
be reminded and admonished what manner of man 
an American ought to be. 

One final thought still presses upon us. We have 
recalled the past; what shall be the future? The 
gift of prophecy is mercifully withheld from man. 
Hope, kindlier than prophecy, stands in the place of 
it, the just and reasonable hope, instructed by what 
has gone before. The emotions of this day raise us 
far above the jargon and turmoil of the poor quarrel 
of the hour, whose outcome we are wont to await with 
so much solicitude, and which seem to our impatient 
vision to oppose to us obstacles so dangerous. We 
look down upon them, and we see how temporary 
and ephemeral they are. We perceive that we need 
not on their account despair of the Republic, which 
patriotism and devotion have more than once brought 
out resplendent from darker days than we shall ever 
know. Gazing forward, in the light of the afterglow 
of the dying centurj^ we are able to discern with the 
eye of faith and of hope what this sentinel pile shall 
look out upon in the days that are before it. 

It will look out upon Vermont — on whose valleys 
and hill-sides the seed-time and the harvest shall never 
fail. A land to which its people shall still cling with 
an affection not felt for the surface of the physical earth 
by any but those who are born among the hills ; hallow- 
ed to them as to us by its noble traditions ; sacred for 
the dead who rest in its bosom. The beautiful name 

25 



ORATIONS AND ESSAYS 

which the mountains have given it will abide upon 
the land forever. Vermont, always Vermont ! 

And it will behold a society where the great prin- 
ciples of civil and religious liberty on which it is founded 
shall be slowly but certainly working themselves out 
to their final maturity, A prosperity more and more 
widely diffused among common men. An advancing 
civilization, not without the vicissitudes, the blemishes, 
the mistakes, the sorrows, through which humanity's 
path must always lie, but in which the gain shall still 
surpass the loss, and the better surmount the worse; 
enlightened, from generation to generation, by an 
increasing intelligence, a broader knowledge, a higher 
morality; alleviated and illuminated, as it was in the 
beginning, by the inexhaustible blessing of our fathers' 
God. 



II 

ADDRESS 

DELIVERED AT SARATOGA, NEW YORK, AUGUST 21, 1879 
BEFORE THE AMERICAN BAR ASSOCIATION ON 

CHIEF JUSTICE MARSHALL AND THE CONSTITUTIONAL 
LAW OF HIS TIME 



CHIEF JUSTICE MARSHALL 



Mr. President and Gentlemen of the As- 
sociation, — I had hoped to have offered you, this 
morning, what you may perhaps regard as due to the 
occasion, a written address. Circumstances not fore- 
seen when I accepted the invitation of your conmiittee 
have placed that preparation out of my power, and 
have reduced me to the necessity either of appearing 
before you without it, or not appearing at all. I should 
have accepted the latter alternative, if I had felt myself 
quite at liberty to disregard such an engagement; 
and if I had not felt so much solicitude for the success 
of this, our first annual meeting, that I was reluctant 
to have any of its announcements fail. It seems 
to me that if these meetings are to succeed, we should 
regard such invitations somewhat as politicians profess 
to regard nominations for the Presidency : not supposed 
to be sought, but not under any circumstances what- 
ever to be declined. 

Allow me one word further on this subject. While 
we shall always listen, I am sure, with greater pleasure 
and advantage to the elaborate preparation that pro- 
duces such admirable papers as we heard yesterday, 
in the address and the essays that were read to us, 
I hope that the precedent will not be established among 

29 



ORATIONS AND ESSAYS 

us that such preparation is indispensable. We all 
know how difScult in our busy lives it is at all times 
to command it. I trust, therefore, we shall always 
feel at liberty, when we are fortunate enough to have 
anything to say, and to be asked to say it, to address 
each other in the simple, unpremeditated style that 
prevails in courts of justice, hi other words, if gentle- 
men cannot always redeem their obligations in gold, 
let us have the silver, even at ninety-two cents on the 
dollar ; it is much better than total repudiation. 

I shall ask your attention to some observations, 
more desultorj^ than I hoped to make them, on the 
subject of Chief Justice Marshall and the constitutional 
law of his time. 

If Marshall had been onlj- what I suppose all the 
world admits he was, a great lawyer and a ver}^ great 
judge, his life, after all, might have had no greater 
historical significance, in the strict sense of the term, 
than the lives of many other illustrious Americans 
who in their day and generation have served and 
adorned their country. 

A soldier of the Revolution — the companion and 
friend of Washington, as afterwards his complete and 
elegant biographer — greatly distinguished at the bar 
and in the public service before he became Chief Justice 
— and then presiding in that capacity for so long a 
time with such extraordinarj- ability, with such un- 
precedented success — if the field of his labors had been 
only the ordinary field of elevated judicial duty, his 
life wovdd still have been, in my judgment, one of the 
most cherished memories of our profession, and best 
worthy to be held in perpetual remembrance. Pinkne}' 
summed up his whole character when he declared that 

30 



CHIEF JUSTICE MARSHALL 

]\Iarshall was born to be the Chief Justice of whatever 
country his lot might happen to be cast in. He stood 
pre-eminent and unrivalled, as well upon the unani- 
mous testimony of his great contemporaries, as by 
the whole subsequent judgment of his countrymen — 
the best judicial fruit our profession has produced. 

Another interest, less important, but perhaps to the 
lawyer who dwells upon the history of his profession 
more fascinating, attaches to the life of Marshall. 
He was the central figure — the cynosure — in what may 
well be called the Augustan age of the American bar ; 
golden in its jurisprudence, golden in those charged 
with its service, and sharing in its administration. 
We cannot expect, since change is the law of systems 
as well as of individuals, and of all human affairs, we 
can never expect to see hereafter a jurisj)rudence so 
simple, so salutary, so elevated, so beneficent, as the 
jurisprudence of those days. Perplexed as the law 
has become with infinite legislation, confused and 
distracted with a multitude of incongruous and in- 
consistent precedents that no man can number, it is a 
different system now, although still the same in name, 
from that which Marshall dealt with. And it is no 
disparagement to the bar of our day — and no man 
esteems its ability and character higher than I do — 
to saj' that we can hardly hope to behold again such 
a circle of advocates, displayed upon a stage at once 
distinctive and conspicuous, as gathered round the 
tribunal over which the great Chief Justice presided. 
The Livingstons, Emmet, Oakley, Dexter, Webster, 
Pinkney, Wirt, Sergeant, Binnej', Hopkinson, Dallas 
— no need to name them all ; their names are house- 
hold words among lawyers. Well may it be said of 

31 



ORATIONS AND ESSAYS 

them, " The dew of their birth was of the womb of the 
morning ' ' ; the morning of this country ; the morning 
of Republican government; the morning of American 
law, of American prosperity, of American peace. It 
is sad to remember, what we all have to remember, 
how largely the fame of such men rests in tradition; 
how much of it is in pais, and how little on the record. 
It is the fate of the advocate. However important his 
labors, or brilliant his talents, they are expended for 
the most part upon transitory affairs — the concerns 
that perish — the controversies that pass away. Like 
the actor, he has his brief and busy hour upon the 
stage, but his audience is of the hour, his applause 
of the moment. When the curtain falls, and he is 
with us no longer, very little remains of all his exer- 
tions. Even the memorj" of them perishes when the 
witnesses are gone. 

But it is not, in mj' judgment, as a great judge merely, 
or in comparison with other great judges, that Chief 
Justice Marshall will have his place in ultimate history. 
The test of historical greatness — the sort of greatness 
that becomes important in future history — is not great 
ability merely. It is great ability combined with great 
opportunity, greatly employed. The question will be, 
how much a man did to shape the course of human 
affairs, or to mould the character of human thought. 
Did he make history, or did he only accompany and 
embellish it? Did he shape destiny, or was he carried 
along by destiny? These are the inquiries that pos- 
terity will address to everj^ name that challenges per- 
manent admiration, or seeks a place in final history. 
Now it is precisely in that point of view, as it appears 
to me, and I venture to present the suggestion to your 

32 



CHIEF JUSTICE MARSHALL 

better consideration, that adequate justice has not 
yet been done to Chief Justice Marshall. He has been 
estimated as the lawyer and the judge, without proper 
consideration of how much more he accomplished, 
and how much more is due to him from his country 
and the world, than can ever be due to any mere law- 
yer or judge. The assertion may perhaps be regarded 
as a strong one, but I believe it will bear the test of 
reflection, and certainly the test of reading in American 
history, that, practically speaking, we are indebted 
to Chief Justice Marshall for the American Constitu- 
tion. I do not mean the authorship of it, or the adop- 
tion of it — although in that he had a considerable share 
— but for that practical construction, that wise and 
far-seeing administration, which raised it from a doubt- 
ful experiment, adopted with great hesitation, and 
likely to be readily abandoned if its practical working 
had not been successful — raised it, I say, from a doubt- 
ful experiment to a harmonious, a permanent, and a 
beneficent system of government, sustained by the 
judgment and established in the affection of the people. 
He was not the commentator upon American con- 
stitutional law ; he was not the expounder of it ; he was 
the author, the creator, of it. The future Hallam, 
who shall sit down with patient study to trace and 
elucidate the constitutional history of this country — 
to follow it from its origin, through its experimental 
period and its growth to its perfection — to pursue it 
from its cradle, not I trust to its grave, but rather to 
its iimnortality, will find it all, for its first half-century, 
in those luminous judgments in which Marshall, 
with an vuianswerable logic, and a pen of light, laid 
before the world the conclusions of his Court. It is 
C 33 



ORATIONS AND ESSAYS 

all there, and there it will be found and studied by- 
future generations. The life of Marshall was itself 
the constitutional history of the country from 1801 
lo 1835. 

It is difficult for us, at this time, to comprehend the 
obstacles that attended the original construction and 
liractical administration of the Constitution. Since 
the way through them has been pointed out by the 
labors of that Court, since experience has justified 
and established those propositions, they seem very 
plain and clear. Starting from our point of view, 
and going backward, we can hardly appreciate the 
embarrassments that attended them in the outset. 
But the student of history will discover, the lawyer 
who attends to the growth as well as the learning of 
his profession will never forget, the discouragements 
that surrounded that subject when it was first taken 
in hand. A Constitution adopted with great opposition, 
the subject of the gravest difference of opinion among 
the wisest men, on its most material points ; quite likely 
to fail, as its predecessor, the Articles of Confederation, 
had failed; the object of a heated party spirit and a 
bitter jiolitical controversy ; it not only demanded the 
highest order of judicial treatment, but such as could 
be reconciled to the universal judgment of the country. 
Popular opinion is a matter wdth which independent 
tribunals have usually but little concern. But in this 
case it became as vital as the law itself, because no 
constitution could stand that proved repugnant to 
the general sense. 

The field was absolutely untried. Never before had 
there been such a science in the world as the law of a 
written constitution of government. There were no 

34 



CHIEF JUSTICE MARSHALL 

precedents. Courts of justice sit usually to determine 
the existing law, in the light of authoritative prece- 
dents and statutes. Originality is neither expected 
nor tolerated. A magistrate who shoidd bring nuich 
original invention to bear in expounding the law 
would be apt to prove one of those questionable bless- 
ings that "brighten only when they take their flight." 
An original field of judicial exertion very rarely offers 
itself. To no other judge, so far as I know, has it 
ever been presented, except to Mansfield, in the es- 
tablishment of the commercial law; unless, perhaps, 
the remark may be extended to the labors of Lord 
Stowell in the department of English consistorial 
law, and to those of Lord Hardwicke in equity. Those 
are the only instances that the long history of our pro- 
fession under the common law offers of what may be 
called an original field of judicial labor. 

Such was the task that addressed itself, when Mar- 
shall took his seat upon the bench, to the Court over 
which he presided. A task of momentous importance 
— fraught with infinite difficulty — in a field without 
precedent — and under the most peculiar and critical 
circumstances. 

It is a singular fact that, although the Supreme 
Court had been in existence twelve years before 1801, 
when Marshall was appointed, and though three 
chief justices with brief terms of office had preceded 
him, only two decisions of that Court had been made 
on the subject of constitutional law — the case of 
Hylton vs. the United States, which affirmed the 
validity of a tax upon carriages, laid by the State of 
Virginia, and the case of Calder vs. Bidl, in which 
it was held that an act of the Legislature of the State 

35 



ORATIONS AND ESSAYS 

of Connecticut, granting a new trial in a civil action, 
was not in contravention of any provision of the Con- 
stitution of the United States. Those were the only 
questions previously decided in respect to the Amer- 
ican Constitution. Between that time and 1835, 
when Marshall died, fifty-one decisions will be found 
to have been made and reported by that Court on the 
subject of the law of the Federal Constitution. In 
thirty - four of those cases the opinion was delivered 
by the Chief Justice — being twice as many opinions 
as were delivered on that subject b3' all the other 
members of the Court together. 

I have spoken of this great work as the work of the 
Chief Justice — not unmindful certainly of his eminent 
associates, and especially of Judge Storj', who sat 
with him during a considerable portion of that time. 
And I take leave to refer to the testimony of Judge 
Story, lest some may think I have gone too far in at- 
tributing the merit of this system of law so largely to 
Chief Justice Marshall. Judge Story is perhaps the 
best witness who can testify on that point, because 
his means of knowledge were complete. He was 
not likely to undervalue or disparage the labors of his 
associates, nor entirely to overlook his own very valu- 
able efforts in that branch of the law. He says, in an 
article contributed to the North American Review: 
"We resume the subject of the constitutional labors of 
Chief Justice Marshall. We emphatically say of 
Chief Justice Marshall. For though we would not 
be unjust to those learned gentlemen who have from 
time to time been his associates on the bench, we are 
quite sure they would be ready to admit, what the public 
universally believe, that his master mind has presided 

36 



CHIEF JUSTICE MARSHALL 

in their deliberations, and given to the resiiUs a cogency 
of reasoning, a depth of remark, a persuasiveness of 
argument, a clearness and elaboration of illustration, 
an elevation and comprehensiveness of conclusion 
to which none others offer a parallel. Few decisions 
upon constitutional questions have been made in which 
he has not delivered the opinion of the Court ; and in 
those few the duty devolved upon others to their own 
regret, either because he did not sit in the case, or, 
from motives of delicacy, abstained from taking an 
active part." 

It is to be remembered, further, that in only one 
of all those decisions did the majority of the Court 
fail to concur with Marshall, hi the case of Ogden 
vs. Sanders — where the power of the States to pass 
bankrupt or insolvent laws was discussed, he was, for 
the first and last time, in the minority. Four of the 
judges — against the opinion of Judges Marshall, 
Story, and Duvall — sustained the power of the States 
to pass such a law; but all concurred in the judgment 
in that case, which was that a discharge under such a 
law could not affect a creditor outside the jurisdiction, 
who had not thought proper to appear and become 
a party to the proceeding. I need hardly say to an 
assemblage of lawyers that, as the half-centurj^ that 
has passed away since most of those decisions were 
rendered has completely established and confirmed 
and rendered plainer and plainer the soundness and the 
wisdom of the law they involve, so experience has 
likewise shown that, in this solitary instance in which 
his opinion was rejected, the Chief Justice was right. 
He correctl}^ anticipated, with a far-reaching sagacity, 
what would be the result of a system of insolvency 

37 



ORATIONS AND ESSAYS 

that discharges a debtor in one State and fails to 
discharge him in another ; that pays one creditor who 
is within the State and fails to pay another who is 
without it. And he clearly perceived that, if that great 
power was to be reposed at all in the Federal govern- 
ment, as it is, and of necessity must be, it ought to be 
an exclusive power. There is the only and mistaken 
instance in which his judgment on a constitutional 
question did not become the law of the land. 

And therefore it is to be said, without injustice to 
his associates, and without injustice to those great 
lawyers to whom I have alluded, and whose genius 
and labors were contributed to build up this system 
of law, that the value and the credit of it, the author- 
ship and creation of it, are principally due to Marshall. 
And I believe it will be seen in future history, that as 
Washington brought this people through the Revolu- 
tion to a period when they were able to have a Con- 
stitution of their own, so Marshall carried the Constitu- 
tion through that experimental period which settled 
the question whether it should stand or fall. If this 
country has profited, and if through this coimtry the 
world has profited, by the raising of an instrument, 
doubtless the most important since Magna Charta, 
couched necessarily and wisely to a large degree in 
generalities, into the beneficent government under 
which we live, it is more largely due to Chief Justice 
Marshall than to any other man, or perhaps to all 
other men, who ever had anything to do with it. That 
is my proposition. Of course, if the Revolution had 
failed, it is not probable we should always have con- 
tinued to be colonies of Great Britain. Some other 
leader, in some other rebellion, might have carried 

38 



CHIEF JUSTICE MARSHALL 

us through to a condition of independence. If this 
Constitution had perished, Repubhcan government 
might not have perished. Some other tribiuial, under 
some other constitution, might perhaps have recon- 
structed it. But taking history as it stands — deahng 
with the Constitution under which we live, and not 
entering upon the vain conjecture of what might have 
been the consequences if that Constitution had fallen 
— certainly the success of the experiment of Republican 
government may be said to be mainly due to Marshall. 

When those celebrated judgments were rendered, 
the questions involved were set at rest. Even party 
and partisan spirit was hushed. They passed, by 
universal consent and without any further criticism, 
into the fundamental law of the land, axioms of the 
law, no more to be disputed. Time has demonstrated 
their wisdom. They have remained unchanged, un- 
questioned, unchallenged. All the subsequent labors 
of that high tribunal on the subject of constitutional 
law have been founded on and have at least professed 
and attempted to follow them. There they remain. 
They will always remain. They will stand as long 
as the Constitution stands. And if that should perish, 
they would still remain, to display to the world the 
principles upon which it rose, and by the disregard of 
which it fell. 

Let me saj^ here in passing, that the service ought 
to be rendered to the history and literature, to say 
nothing of the constitutional law of the country, of 
bringing these opinions together in some compilation 
that should make them accessible to the general student 
as well as to the lawyer. They are scattered, as you 
know, through some twenty-five volumes of reports, 

39 



ORATIONS AND ESSAYS 

practically inaccessible to readers outside the profession. 
They are known only through a vague reputation, 
except to the profession, and not perhaps so comj^letely 
understood by all the profession as could be desired, 
if we may judge from some of the recent discussions 
upon the subject. If they could be brought together, 
not merely as the rejjository of the foundation-stones 
of the fundamental law of the land, but likewise as 
among the highest models of logic and reason and the 
purest specimens of judicial stj^le, it would be a con- 
tribution to American letters and history that would 
be valuable and permanent. 

I do not propose, as you may well imagine, to enter 
into any discussion on questions of constitutional 
law. But a few words may be pardoned in respect 
to the means and the manner by which the residt I 
have spoken of was achieved ; and not only achieved, 
but rendered so perfectly satisfactory to the whole 
body of the American people. It seems to me that it 
all turned upon one cardinal point, and a point which 
I shall venture to suggest needs to be more frequently 
recurred to and more clearly understood. And that 
is, that the construction of the Constitution of the 
United States, for all purposes for which it requires 
construction, belongs everywhere and always to the 
jurisprudence of the comitry, and not to its politics, 
or even to its statesmanship. The lawyer or the stu- 
dent who shall set himself down to follow the labors 
of that great tribunal from beginning to end, to learn 
on what foundation they rested, and what was the 
guide through the maze that proved as unerring as 
the mariner's compass in the storm, will find it in that 
salutary principle, set forth with the utmost clearness 

40 



CHIEF JUSTICE MARSHALL 

and unanswerable force in the early case of Marbiiry 
vs. Madison, followed uj) from time to time by re- 
peated decisions, and adopted by all jurists and all 
courts ever since, that the Constitution of this country 
has, by an inevitable necessity, reposed in the judicial 
de{)artment of the government the sole determination 
and construction of the fimdamental law of the land. 
In England, whence our institutions were mainly 
derived. Parliament is omnipotent. It is the tribimal 
charged with the administration of the unwritten 
British Constitution. Their action in that sphere is 
final. An3^ statute they deem it proper to pass is a 
valid statute, and controls all rights, i^ublic and private. 
The American Constitution is based upon a different 
theory. That difference, as it seems to me, is the 
distinguishing and almost the only vital difference 
from the Constitution of Great Britain. The mere 
machinery of the administration of the government — 
the manner in which the chief magistrate shall be 
elected — the term of his office — the appointment of his 
subordinates — these and other details are subject to 
change, as time and experience shall i)oint out. They 
are not essential to our system. It is not ui)on these 
that Republican government reposes. It is, I say — 
and I repeat in order to emphasize more clearh' the 
proposition I desire to present — it is u])on the intrust- 
ing to the judicial department of the whole subject of 
the constitutional law, for all purposes, that our gov- 
ernment rests. While that stands and is maintained 
in its jHirity, this Constitution will stand. The ship 
will ride as long as the anchor holds, though storm 
after storm may sweep across the face of the sea. While 
that remains, the system will remain. Details may be 

41 



ORATIONS AND ESSAYS 

modified and changed, we cannot foresee to what ex- 
tent. Changes of that sort have aheady taken place, 
but the principle I have stated is the fundamental 
idea. 

That point once established by the Court, the sim- 
ple, the ancient, the salutary, the perfectly intelligible 
and just jirinciples of the common law became suf- 
ficient for all the purposes of constitutional construc- 
tion. When the rule of construction of the great com- 
pact was shown to be simply a question of law, the law 
was found perfectly adequate to dispose of it. 

No better illustration can be produced in history of 
the profound wisdom of that system of jurisprudence 
known as the common law than to observe how com- 
pletely those rules that are applied to the humblest 
contract, between the obscurest individuals, were found 
sufficient for the emergency, when a court of justice 
was called upon for the first time in the history of the 
world, not merely to adjudicate iqion private rights, 
but to promulgate from the bench the jirinciples of 
civil government, and to adjust the rights and powers 
of conflicting sovereignties. If the eulogian of the 
common law seeks for the most signal illustration 
of its comprehensiveness, he will find it there. It was 
by tlie application to the Constitution of those plain 
and clear rides that all tlie results of its construction 
were satisfactorily worked out. 

When we peruse those judgments, we are reminded, 
especially and above all, how absolutely free the\' are 
from all considerations of political expediency, all 
motives of party politics, all statecraft, or even states- 
manship, unless it may be deemed the highest states- 
manship to avoid the attempt at statesmanship in 

42 



CHIEF JUSTICE MARSHALL 

judicial construction, and not to confound two very 
different systems of administration, belonging to two 
very different tribunals. How perfectly free from all 
suspicion of party or political bias or feeling those 
decisions stand ! And that, as it appears to me, is 
one reason why they were accepted by the universal 
consent of the American people, and have alwaj's 
remained without question or dispute. No political 
party ever yet convinced its adversaries by argument. 
Discussion only intensifies the dispute; harmony 
with a political opponent is only obtained by the 
exercise of the courtesy which suspends all discussion 
on the points of difference. No living man could 
have addressed to the American people, in that first 
critical half-century of the Republic, a constitutional 
argiunent based upon party politics that would have 
stood an hour. It woidd have been luiiversally re- 
jected, denied by its opponents, despised by its friends. 
Marshall, as it is well known, was a Federalist. His 
political opinions were doubtless pronounced and 
decided. It was not because he was without political 
sentiments that he excluded them from his court. 
The Federal jiarty, I may be permitted to observe 
in passing, will perhaps receive better justice from 
future history than it has from the past. It went to 
final wreck about the time of the last war with Great 
Britain, encountering the usual fate of a party which 
sets itself in opposition to any war it may be proposed 
to engage in. But I believe the ultimate justice will 
be done it of remembering that some of the greatest 
and purest men this coimtry ever contained were the 
founders and leaders of that much -abused partj'. 
Their views have been generally misconceived. It 

43 



ORATIONS AND ESSAYS 

was not upon the construction of the Constitution we 
have that tliey differed from their opponents, but 
u]3on the previous question, whether we should have 
that Constitution or some other. It is idle to busy our- 
selves with conjectures of what might, would, or could 
have been the history of this country if the Constitu- 
tion wliich Washington, Hamilton, Jay, and, doubtless, 
Marshall preferred had been adopted, because it was 
not adopted. But Federalist as he was, and what- 
ever may be .said of his party or their views, we can 
find no more trace in any line of those great judgments 
that would indicate the political sentiments or bias of 
the Cliief Justice than if we were to stud}' his opinions 
upon charter parties or policies of insurance. 

Let me quote on this subject some ver}^ forcible and 
apposite language, from the resolutions adopted bj' 
the Charleston bar (I know not who was the author*) 
on the occasion of Chief Justice Marshall's death: 
" Even the spirit of party respected the unsullied purity 
of the Judge, and the fame of the Chief Justice has 
justified the wisdom of the Constitution, and reconciled 
the jealousy of freedom with the independence of the 
judiciary." 

As every lawyer and every intelligent laj'man knows, 
the point of most danger and difficulty in constitutional 
construction, where the greatest risk of final shipwreck 
is incurred, is in the attempt to adjust those conflicting 
— sometimes doubtful — always very delicate — relative 
rights of the States and the Federal government. 
That point, of all others, was treated bj' the Coiui 
with the largest sagacity and the greatest wisdom. 

* stated by Genera! Lawtoii, of Georgia, to have been written by- 
Mr. Pettigru. 

44 



CHIEF JUSTICE MARSHALL 

Critical as were many of the emergencies that arose in 
those days out of that subject, they were all not onl}^ 
satisfactorily met, but buried and forgotten forever, 
under the wise and salutary administration of the 
law which they encountered. 

Upon the distinction, so much and so long discussed 
in some parts of our country, between strict construc- 
tion and liberal construction in respect to these relative 
rights, it was the view of the Chief Justice and his 
associates that they were luiable to perceive what 
those words meant in that connection, or what just 
application thej? had. The Court had simplj^ to as- 
certain the meaning of a written instrument, which 
upon common principles was to be construed both 
strictly and liberally ; strictly in ascertaining what 
powers it contains, liberally in carrying into effect 
those powers it is found to contain. 

Allow me, in taking leave of this point, to read a 
few words from the language of the Chief Justice 
himself, out of much that might be usefully quoted 
did time allow. "In the argument," says he, "we 
have been admonished of the jealousy with which 
the States of the Union view a revising power, intrusted 
by the Constitution and laws of the United States, 
to this tribunal. To observations of this character 
the answer uniformly given has been that the course 
of the judicial department is marked out by law. We 
must tread the direct and narrow path prescribed for us. 
As this Court has never grasped at ungranted juris- 
diction, .so will it never, we trust, shrink from the ex- 
ercise of that which is conferred upon us." Words 
which are fit to be written in letters of gold over 
every tribunal in this countr3\ 

45 



ORATIONS AND ESSAYS 

One other suggestion in respect to these opinions 
of Marshall. I have said they were models of reason- 
ing and of judicial style; and I repeat the remark. 
If the Constitution were out of existence — if the whole 
subject which they discuss were to become only a 
thing of the past, of no further human significance — 
the}' would still retain their value as among the most 
admirable jiroductions in the logic and literature of 
jurisprudence. There are two kinds of reasoning 
prevalent at the bar, and prevalent, I may say, without 
undue disparagement, sometimes on the bench. There 
is the reasoning that silences and the reasoning that 
convinces; and they are ver^' different things. The 
casuistry and plausibility, the dexterity and subtlety, 
the circuitous and roundabout processes of indirec- 
tion which may confound an antagonist who is not 
strong enough in dialectics to refute them, is altogether 
a different thing from that simple, direct, straightfor- 
ward, honest reasoning that silences as a demon- 
stration in Euclid silences, because it convinces. Such 
was the reasoning of Marshall, born of the intellectual 
as well as moral honesty, the tough and vigorous 
fibre of the man. And this it was, in great measure, 
that carried home and established in the understand- 
ing and judgment of mankind the truths it embodied. 

It is foreign to my purpose, and beyond the limits 
I fear I am already transgressing, to follow the labors 
of the Chief Justice any further. I shall not at all 
advert to their value, their eminence, their greatness 
in so many other branches of jurisprudence besides 
constitutional law. I shall not try to depict — no poor 
words of mine could de})ict — the spectacle which that 
unassuming but dignified tribunal pre.sented during 

46 



CHIEF JUSTICE MARSHALL 

thirty-five 3-ears of time, while with unabated strength 
he continued to preside there, until the snows of four- 
score winters had fallen on his head; surrounded by 
the associates and the circle of advocates I have be- 
fore referred to — dealing with the greatest questions, 
the most important interests, in the light of the highest 
reason, the finest learning, the most elevated senti- 
ment, and often with an affecting eloquence, which 
in our busy day has disappeared from courts of justice, 
to be heard there no more; enshrined in the respect, 
the affection, the veneration of all his countrymen; 
no breeze of party conflict but was hushed in his i)res- 
ence, no wave of sectional quarrel but broke and sub- 
sided when it reached his feet. His life, strange to 
say, remains to be written. Lives enough have been 
thought worth writing that never were worth living, 
but the life of the great magistrate is unwritten still. 
Perhaps it is as well that it should be. Time was 
needed to set its seal upon the great lessons he taught; 
experience was requisite to show what was the result 
of following and what the result of departing from 
them. Some daj' the history of that life — that grand, 
pure life — will be adequately written. But let no 
'prentice hand essay the task! He should possess 
the grace of Raphael, and the color of Titian, who shall 
seek to transfer to an enduring canvas that most 
exquisite picture in all the receding light of the days 
of the early Republic. 

Perhaps tlie brethren of our profession do not always 
remember the high prerogative which, under this sj^s- 
tem of fundamental law, difTerent from any other we 
know of, the American bar enjoys. Lawyers in other 
countries have nothing to do, as lawj'ers, with con- 

47 



ORATIONS AND ESSAYS 

stitutional principles of government, or with the basis 
on which its administration stands. They deal ex- 
clusively with the administration of justice, civil and 
criminal, between man and man, under a govern- 
ment established and fixed, with the operations oi 
which they have i)rofessionally no concern. We, 
on the other hand, are charged with the safe-keeping 
of the Constitution itself. It is from your ranks that 
judicial vacancies are constantly to be filled up; the 
lawj^ers of to-da.y are the judges of to-morrow. It is 
by 3^our discussions, in the light of your writings, 
by the aid of your labors that every successive ques- 
tion that arises touching the fundamental law is to 
be adjudicated. Great and distinguished as the Eng- 
lish bar is, and has been, it never had any such fimction 
as this. And that is, doubtless, one reason why the 
great advocates of the period to which I have alluded 
were able to achieve such distinction. They were 
dealing with a class of subjects which lawyers had 
never dealt with before. " Your mere nisi prius law- 
yer," said Burke, when harassed with the technical 
objections of his adversaries on the impeachment of 
Hastings — "your mere nisi prius lawyer knows no 
more of the principles that control the affairs of state 
than a titmouse knows of the gestation of an elephant." 
The remark was as true as it was pungent, when 
applied to the bar to which he referred. But it has no 
just application to ours. If the fundamental proposi- 
tion I have stated is sound, if the Constitution that 
affords the basis of government as well as of forensic 
law belongs to the judicial department to determine 
and to administer, then it is placed in the safe-keeping 
of the American bar. And we enjov, as I have said, 

48 



CHIEF JUSTICE MARSHALL 

such a prerogative as never before was conferred upon 
a body of advocates. 

But does that high prerogative carry with it no 
corresponding duty? Are we charged with nothing 
as the price of such a privilege? Have we no other 
trust to execute in respect to the American Constitu- 
tion than that which all citizens are charged with 
and are expected to perform? It is idle to adjure men 
to maintain the Constitution or to compel them to 
swear to support it. Every man proposes to maintain 
and support the Constitution — as his party understands 
it. The question is, What is the Constitution? When 
a great and critical emergency arises, when a crisis 
fraught with extreme and vital consequences ap- 
proaches, what is the Constitution? Who is to deter- 
mine it, and, above all, upon what principle and basis 
of construction? That is the question. 

It was pointed out to us, in the elegant and scholarly 
essay of Mr. Mercer, to which we listened last night, 
how the concurrent testimony of all human experience 
establishes the truth that the interpretation and the 
strength of law is but a refle.x of the national spirit 
out of which all law arises. There is, as it seems 
to me, a practical and immediate application of that 
proposition to the legal i)rofession of this country 
in this very particular. Their influence is great; 
their influence upon legislation — their influence upon 
judicial proceedings — their influence upon the public 
mind — upon political sentiment, especialh^ in respect 
to que.stions particularly within their province. It is 
from them that the true .spirit of the jurisprudence of 
the country on all subjects, and, above all, this subject, 
must of necessity emanate. It is they who make it; 
D 49 



ORATIONS AND ESSAYS 

it is through them that it must take effect. That 
pohtical parties -will always exist is inevitable; that 
they always should exist is probably desirable; that 
members of our profession, as of all other professions, 
should represent all shades of political opinion, and 
belong to all parties, is to be expected ; though I hope, 
on some of them, party ties hang very loose. The 
question is, how far party differences shall go. Where 
shall they set out? where shall they terminate? Shall 
they invade the province of the fundamental law? 
Is that to be administered by politicians, to be con- 
strued by caucuses, to stand or fall upon political 
considerations, and for the purposes of partisan suc- 
cess? Are not there divergent paths enough, which, 
starting from the Constitution as a common ground, 
and running in every direction through all the rami- 
fications of the administration of government, through 
the whole boundless field of policy and statesman- 
ship and expediency, are not they enough for all the 
purposes of politics, and all the warfare of party? 
Should not the lawyers of this covmtry meet as on a 
common ground in respect to all questions arising 
upon the national Constitution, dealing with them 
as questions of jurisprudence, and not of partj^ setting 
their feet upon and their hands against all efforts 
to transgress the true limits of the Constitution, or to 
make it at all the subject of political discussion? It 
is too true that this Constitution of ours, in respect 
of wliich it might well be said to him who approaches 
it, " Put off thy jiarty shoes from off th^' feet, for the 
place on which thou standest is holy gromid" — it is 
too true that it has become more and more a subject to 
be hawked about the country, debated in the news- 

50 



CHIEF JUSTICE MARSHALL 

papers, discussed from the stump, elucidated by pot- 
house poHticians and dunghill editors, scholars in the 
science of government who have never found leisure 
for the graces of English grammar or the embellish- 
ments of correct spelling. 

When we reflect upon all this country has passed 
through, is there no light to be gathered from ex- 
perience? Should not the members of this conserva- 
tive profession, "as honorable as justice, as ancient 
as the forms of law," charged with a duty in this re- 
gard so special, and so important, should not they 
stand together upon these as upon all other questions 
of jurisprudence, considering and discussing them 
only upon considerations that belong to jurisprudence, 
and not upon those that are in the domain of politics? 
Should not they of all men stand together and unite 
to put an end, as I believe they might put an end, if 
their action was unanimous, not to i)olitical contro- 
versy — that is neither to be expected nor desired — 
but to that most destructive form of political contro- 
versy, coming from whatever party, or from whatever 
quarter, or for whatever purpose, that seeks to invade 
the foundations of the constitutional law and to jilant 
them on the shifting and treacherous sands of partisan 
expediency? 

And, gentlemen, allow me one further suggestion. 
What good is to come from this Association we are 
trj-ing to build uji? What is to be its significance, 
or its ultimate value? What is to repay us, or any 
of us, for turning aside from the current of oiu' busy 
lives to meet together here? Questions of detail in 
the machinery of the law will be usefully dealt with, 
no doubt. The pleasure of meeting and forming 

51 



ORATIONS AND ESSAYS 

acquaintances between men ol the profession from 
all the various States will doubtless be great. But 
what final good, what i)ermanent usefulness is reason- 
ably to be expected from it, unless it be the creation 
in our profession, bj' common consent, by mutual 
intercourse and support, of a broad, national, elevated, 
independent, fearless spirit of constitutional jurispru- 
dence — the s[)irit that builds vip and perpetuates, 
rather than that which pulls down and destroys? 

We come together from all parts of our country — 
our common country — from the scenes of a desolation 
and sorrow on all hands, that God alone can estimate 
— over graves numberless to our arithmetic — the 
harvest of the effort to settle constitutional questions 
by force of arms. Let it all pass. We come to bury 
the armed Caesar, not to praise him To renew again, 
in faith and hope, the work which Marshall and liis 
associates began, of cementing and building up on 
firm and lasting foundations the American Constitu- 
tion. Is it the Court alone that is charged with that 
duty? Have we no part or lot in the matter? Lingers 
among us no memory of those who are gone? Comes 
down to us no echo from our fathers' time that shall 
awake an answering voice? 

Fortunately for us all, we have, in the successors 
of the old Court, an upright and excellent tribunal, 
judges who have addressed themselves, and will 
continue to address themselves, with great ability, 
patriotism, and success to the difficvilt and embarrass- 
ing questions born of the troubled time. But no 
court can stand without the cordial support of the bar. 
It was the strength of IVIarshall's Court that those 
great men who rallied about it in the profession, and 

52 



CHIEF JUSTICE MARSHALL 

aided in its discussions, stood bj' it and sustained it 
before the countr3% when important decisions were 
made, with a moral force that was adequate to all 
occasions. 

It is idle to say that our sky is free from clouds. It 
is useless to deny that wise and thoughtful men en- 
tertain grave doubts about the future. The jieriod 
of experiment has not 3'et passed, or, rather, has been 
again renewed. The stability of our system of govern- 
ment is not yet assured. The demagogue and the 
caucus still threaten the nation's life. But we shall 
not despair. Still remains to us " our faith, triumphant 
o'er our fears." Let us only, for our part, see to it 
that we discharge the duty that every man owes to 
his profession. And come what may, 

"Thro' plots and counterplots — 
Thro' gain and loss — thro' glory and disgrace — 
Along the plains where passionate discord rears 
Eternal Babel," 

let us join hands in a fraternal and unbroken clasp 
to maintain the grand and noble traditions of our 
inheritance, and to stand fast by the ark of our cove- 
nant. 



Ill 

ADDRESS 

DELIVERED IN NEW YORK, N. Y., FEBRUARY 4, 1890 
AT THE CENTENNIAL CELEBRATION OF THE 

FEDERAL JUDICIARY 



UNITED STATES SUPREME COURT 

AND THE SOVEREIGNTY OF 

THE PEOPLE 



But few words remain to be added to those so well 
spoken by my distinguished brethren in concluding, 
on the part of the Bar, the expression which this oc- 
casion calls for. We have thought it well to mark, 
in a manner thus significant and conspicuous, the cen- 
tennial anniversary of our highest and greatest tri- 
bunal ; to review, so far as the flying hour allows, 
its eventful and interesting history; to recall some 
of its memories, cherished and imperishable; and to 
consider, in the light of a century's experience, what 
has been, and what is like to be hereafter, its place 
and its influence as an independent constitutional 
power in the Federal government of this country. 

We cannot forget that in its origin it was an ex- 
periment, untried and uncertain. Judicial history 
has not furnished another example of a court created 
by an authority superior to legislation and beyond 
the reach of executive power, clothed with a jurisdic- 
tion above the law it was ajipointed to administer, 
and charged not merely with tlie general course of 
public justice, but with the limitation of the powers 

57 



ORATIONS AND ESSAYS 

of political government and the adjustment of the 
conflicting claims of sovereign States. The hundred 
years that now terminate have tested the value of 
all American institutions. I'ortunate as thej' have 
been for the most i)art, it will yet be the judgment of 
dispassionate history that no other has so completely 
justified the faith of its authors, nor fulfilled with 
such signal success the purpose of its foundation. 

What was that purpose? Not the limited original 
jurisdiction of the Court, dignified and important, 
but rarely invoked. Not chiefly, even, its ordinary 
appellate jurisdiction, extensive and beneficent as it 
is, most desirable, yet perhaps not indispensable. 
Not for these objects, great though they are, was it 
placed, nor did it need to be placed, on the singular 
eminence it occupies. Its principal and largest func- 
tion was designed to be, as it has been, the defence 
and preservation of the Constitution that created it 
as the i^ermanent fundamental law on which our sys- 
tem of government depends. 

Had that instrument been left only directory to 
the Legislature, to be construed and given effect as the 
exigencies of party or the purposes of the hour might 
demand; had it been referred to the conflicting de- 
termination of various courts, with no supreme arbiter 
to correct their mistakes, or to harmonize their dis- 
agreements, so that its meaning might depend upon 
the State or the tribiuial in which the question hap- 
pened to arise, it would speedily have become but the 
shadow of an authority that had no real existence, 
fruitful in a discord it was powerless to allay. Amer- 
ican experience has made it an axiom in political 
science that no written constitution of government 

58 



UNITED STATES SUPREME COURl 

can hope to stand without a j)araniount and inde- 
pendent tribunal to determine its construction and 
to enforce its precepts in the last resort. This is the 
great and foremost duty cast by the Constitution, 
for the sake of the Constitution, upon the Supreme 
Court of the United States. 

The jurisdiction of the Court over questions of this 
sort, and the dual sovereignty so skilfully divided be- 
tween the States and the Federation, as they are the 
most striking, are likewise the only entirely original 
features in the Constitution. All else found a prece- 
dent or, at least, a prototype in previous institutions. 
In its other branches it is mainly the combination 
and adaptation of machinery that was known before. 
It was to be expected, therefore, that the earliest and 
most critical exercise of the new power conferred upon 
the Court would be displayed in dealing with the new 
form of sovereignty at the same time devised, and 
bringing into harmony those opposite forces that 
might so easily have resulted in conflict and disaster. 
The questions that have arisen in this field have been 
usually the most delicate, often the most difficult, al- 
waj^s the most conspicuous of all that have engaged 
the attention of the Court. While it has been charged 
with the limitation of many other departments of 
governmental authority, here have been found hitherto 
its most prominent employment and the most danger- 
ful emergencies it has had to confront. Here have 
taken place its most celebrated judgments, the most 
signal triumphs of its wisdom, its foresight, as well 
as its moral courage — rarest of human virtues. It 
is to this sagacious judicial administration of the 
Constitution that we are principally indebted for the 

59 



ORATIONS AND ESSAYS 

harmonious operation that has attended the Federal 
system, each party to it made supreme in its own 
sphere, and at the same time strictly confined within 
it, neither transgressing nor transgressed. Looking 
back now upon this long series of determinations, it 
is easy to see how different American history might 
have been had they proved less salutary, less wise, 
and less firm. The Court did not make the Constitu- 
tion, but has saved it from destruction. Only in one 
great conflict, generated by the single inherent weak- 
ness of the Constitution, and, unhappity, beyond ju- 
dicial reach, has the Court failed to maintain inviolate 
all the borders and marches of contiguous jurisdiction, 
and to keep unbroken the peace of the Union. 

But it still remains to be observed that the service 
of preserving, through the Constitution, the Union 
of the States, great and distinguished as it is, and 
vital as it is, has been wrought upon the machinery 
of government, not upon its essence. Beyond and 
above the question how a political system shall be 
maintained lies the far larger question. Why should 
it be maintained at all? The forms of free govern- 
ment are valuable only as they effect its purpase. 
They may defend liberty, but they do not constitute 
it, nor necessarily produce it. Their ultimate perma- 
nence, therefore, among the men of our race must 
depend, not on themselves, but on their results. 

The true analysis of the function of the Supreme 
Court, as the conservator of the Constitution, involves, 
consequently, the further inquiry. What is the value 
of the Constitution to those who dwell under the shadow 
of its protection? 

It rests upon the foundation-stone of popidar sov- 

60 



UNITED STATES SUPREME COURT 

ereignt}'. The true definition of tliat familiar and 
much-abused phrase is not ahvays kept in view. The 
sovereignty of the people is not the arbitrarj^ power 
or blind caprice of the multitude, any more than of 
an aristocracj^ or a despot. It is not the right of any 
class, small or great, high or low, to wrong or oppress 
another. It is not a struggle between classes at all. 
It is simply the recognition of the natural and equal 
rights of man as the basis of a government formed 
for their protection bj' its people, and regulated by 
law, a system imder which every citizen, in the jieace 
of God and of the State, shall be assured by indefeasible 
right, and not by favor or sufferance, in the enjo}^- 
ment of his life, his libertv, his property in all its forms, 
his home his family relations, his freedom of con- 
science and of speech. The powers of government, in 
all their extent and elaboration, come down at last to 
this ultimate purpose. For this they exist, and on 
this foimdation is raised all that renders social life 
desirable. "In my mind," says Lord Brougham, 
" he was guilty of no error, he was chargeable with no 
exaggeration, he was betrayed by his fancy into no 
metaphor, who once said that all we see about us. 
King, Lords, and Commons, the whole machinery 
of the State, all the apparatus of the system and its 
varied workings, end in simply bringing twelve good 
men into a box." 

The world has seen empires and dynasties without 
number based upon arbitrary power. But, for the 
most part, it has seen them perish. They have illu- 
minated the page of historj^ but with the light of the 
comet and the meteor, not of the stars. The civiliza- 
tion they have brought forth has been as transient as 

6i 



ORATIONS AND ESSAYS 

themselves. Neither government nor civiHzation con- 
tained any element of permanence until they came to 
be founded upon the principles of civil and religious 
liberty. Magna Charta was, therefore, the starting- 
point, not merely of free in.stitutions, but of the onl}' 
civilization that ever did or ever could survive political 
systems, and pass on imimpaired from the ruins of 
one to the construction of another. Its striking and 
memorable language no rhetoric has been able to 
improve, no casuistry to obscure. When it broke upon 
the world it proclaimed a new era, the dawning of a 
better day for humanity, in which the rights of man 
became superior to government, and their protection 
the condition of allegiance. The great thought ma- 
tured with a slow but certain growth. Battles enough 
were fought for it, but never in vain, until at last it 
came to be established forever upon English soil, and 
among the English race on every soil. And the liigh- 
est eulogy upon the British Constitution was spoken 
when Chatham said: "The poorest man maj' in his 
cottage bid defiance to all the force of the Crown; it 
may be frail, its roof may shake, the wind may blow 
through it; the storm may enter, the rain may enter; 
but the King of England cannot enter ; all his forces 
dare not cross the threshold of the ruined tenement." 
But the great orator could go no further; he could 
not say that the British Parliament might not enter 
the home of the subject, for all the judges of England 
are jwwerless in the face of an act of Parliament, 
whatever it may be. It was reserved for the American 
Constitution to extend the judicial jirotection of per- 
sonal rights, not only against the rulers of the people, 
but against the representatives of the people. 

62 



UNITED STATES SUPREME COURT 

The history of the Saxon race exhibits few changes 
more striking than the succession of power. First, 
in the king; then, when royal supremacy became 
intolerable, in the hands of the barons, who struck 
the earliest blow for freedom, and long stood between 
the throne and the people, the supporters of one, the 
protectors of the other. When in the course of time 
that oligarchy had in its turn abused its authority, 
it passed to the Parliament chosen by the jieople. 
And when at last the founders of our Constitution, 
driven to revolution by a parliamentarj- oppression, 
had learned that even representative government 
cannot always be depended upon by those it represents, 
they placed the protection of personal rights beyond 
the reach of the popular will, and found in a constitu- 
tional judiciary the true and final custodian of the 
liberty of the subject. 

The maintenance of these rights against all Federal 
interference was conferred upon the Court by amend- 
ment almost immediately after the adoption of the 
Constitution, and as soon as it was jierceived that 
the power ought to be expressed, because it might 
fail to be implied. The protection of them against 
State invasion in one important particular — the in- 
violability of contracts — was provided in the original 
Constitution. And when, twenty -two years ago, 
the interference of the States with the rights of life, 
liberty, and projierty was forbidden by the Fourteenth 
Amendment, the jurisdiction of the Court over this 
great subject became complete, and will, beyond 
doubt, always remain so. But one exception still 
exists, in the power of Congress, within the lim- 
ited scope of its authority, to pass a law though 

63 



ORATIONS AND ESSAYS 

it may impair the obligation of a pre-existing con- 
tract. 

Other toi)ics of constitutional interpretation will 
always remain. The time will never come when ques- 
tions of conflicting authority between the States and 
the nation will cease to arise. But that field will 
gradually grow smaller, and its inquiries less critical. 
The main landmarks have now been planted, the 
boundary - lines traced, the cardinal rules strongly 
and clearly established. Future labor in that direc- 
tion, though constant, will be easier and plainer than 
in the century that has passed away. 

But new attacks upon individual rights, in many 
forms and under many pretexts, are beginning to 
be heard of, and are to be looked for in an increasing 
measure. The accursed warfare of classes is the danger 
that appears chiefl}' to threaten the future. It requires 
little prescience to perceive that the burden of con- 
stitutional administration by the Court is to shift here- 
after in a considerable degree from the preservation of 
the machinery of government to the enforcement of 
its ultimate object; from conflicts between the States 
and the Federation to those between the State and 
the citizen, involving the protection of propertj-, of 
contracts, of personal rights. But the best assurance 
that the Court will be foiuid equal to the emergencies 
that are to come, whatever they may prove to be, is 
seen in the success with wliich it has encountered 
those of the past. And that success is most clearly 
shown by the public confidence it has inspired. The 
people of this country have learned to have faith in 
the Court, and pride in it. Elevated and, in a meas- 
ure, isolated as it is, they still feel it to be their own. 

64 



UNITED STATES SUPREME COURT 

Maii3' a plain man has never seen it, nor ever expects 
to see it. He cannot discriminate its jurisdiction, 
nor understand its procedure. The principles of its 
jurisprudence are not for his comprehension. But 
he reposes with a more confident security- under the 
roof his industry has raised, and enjoys with a better 
assurance the liberty that has made him free, because 
he knows there is a limit which oppression cannot trans- 
gress; that he can never be disseized nor outlawed, 
nor otherwise destroyed ; that no agency of power 
can go upon him or send upon him, but by the judg- 
ment of his peers and the law of the land ; and he be- 
lieves that, if the worst should come to the worst, and 
wrong and outrage should be found intolerable and 
yet without other redress, there is still laid up for him 
a remedy imder the Constitution of his country", to be 
coinpassed in some way or other, in the Supreme 
Court of the United States. 

Long and late may it be, sir, before that confidence 
is shaken. If it is sometimes childlike in its sim- 
plicity, it is always noble in its origin. Long and late 
maj' it be before even the suggestion shall penetrate 
the faith of common men that the highest American 
justice is not for them. May no consideration of con- 
venience, no pressure of business ever find its relief 
in any limitation which shall carry the idea to the 
body of the people that there is reserved in this country 
for the powerful corporation, the millionaire, and the 
great financier an ultimate justice that the humbler 
citizen cannot reach ; that a ruinous cause may be de- 
cided against him without redress; and yet the same 
judgment in the case of another man, whose dealings 
are larger in amount, though smaller in relative con- 
E 65 



ORATIONS AND ESSAYS 

sequence, may be reversed and set aside as unlawful 
and unjust. Lawyers know that purely constitutional 
questions are not measured by figures. But that 
discrimination between the special and the general 
jurisdiction can neither be made nor understood by 
the mass of men. And such questions form, after 
all, but a small part of the administration of justice. 
Public confidence is a sensitive jilant. No institution 
in a free government can afford to endanger it. 

And thus, by the inexorable logic of sound consti- 
tutional principles, it has been brought to pass that 
the rights of the people find their last and best security, 
not in the popular assembly, nor in any agency of its 
creation, but in that institution of government which 
is furthest of all beyond the popular reach; which 
is made, as far as any institution can be, independent 
of public feeling and invulnerable to the attack of 
majorities. Having its origin in the sovereignty of 
the people, it is the bulwark of the people against 
their own unadvised action, their own uninstructed 
will. It saves them, not merelj^ from their enemies, 
it saves them from themselves. And so it perpetuates 
the sovereignty from which it sprang, and which 
has best provided for its own supremacy" b^^ the sur- 
render of a power it was dangerous to retain. For 
this purpose alone, aside from those necessary to its 
own maintenance, does the national government 
cross the line of the States. All merely legal rights 
of the citizen, outside of Federal affairs, are left de- 
pendent upon the authority of the State in which he 
is found. Only the cardinal personal rights are taken 
in charge by the nation, as between the government 
and the individual, because only through that protec- 

66 



UNITED STATES SUPREME COURT 

tion can be assured either the vahie or the perma- 
nence of a Constitution, which is itself the govern- 
ment and itself the Union. 

The experience of American free government has 
shown that it is the tendency of its legislative branches 
to decrease, and of its judicial power to rise, in public 
estimation. It has added a fresh demonstration to 
the truth that is as old as the history of freedom, that 
it must find its safety where it found its origin, in the 
exertions of those to whom truth is better than popu- 
larity, and right superior to gain; and has proved 
again what has been proved so often, that the only 
liberty that liumanity can tolerate is the liberty that 
is under the law. 

To you, our especial and most honored guests — 
Justices of the Court whose nativity we celebrate — 
more than Patres Conscripti in our Republic — the Bar 
of this country, in all its length and breadth, has to- 
day but one greeting to offer, one message to conveJ^ 
It is the assurance of their supreme respect, their un- 
faltering confidence, their cordial attachment and re- 
gard. The relations of the Court with the advocates 
who have from time to time gathered about it have 
been always among its happiest incidents. It has 
had the good fortune in an vuicommon degree to in- 
spire them, not merely with respect, but with a sincere 
personal affection. To this sentiment you have never 
been strangers, and you never will be. If the words 
of eulogy that have been so felicitously uttered by 
my brother have touched those who have gone before 
you rather than yourselves, it is because, and only 
because, they are with the dead, and you are still among 

67 



ORATIONS AND ESSAYS 

the living. Long may that restraint seal the lips of 
your eulogists. 

Judges will be appointed and will pass away. One 
generation rapidly succeeds another. But whoever 
comes and whoever goes, the Court remains. The 
king may die, but still the king survives. Strong in 
its traditions, consecrated by its memories, fortified 
with the steadfast support of the profession that sur- 
rounds it, anchored in the abiding trust of its coun- 
trymen, the great Court will go on — and still go on, 
keeping alive, through many another century that 
we shall not see, the light that burns with a con- 
stant radiance upon the high altar of American con- 
stitutional justice. 



IV 

CLASS-DAY ADDRESS 

DELIVERED AT BOSTON, MASS., JUNE 3. 1879, TO THE 
GRADUATING CLASS OF 

BOSTON UNIVERSITY "SCHOOL OF LAW" 



LAW AS A PROFESSION 



Mr. President and Gentlemen of the Grad- 
uating Class, — I hope that, in presenting myself 
before you without the usual jireparation of a written 
address, I may not be thought to have undervalued the 
services of this day, or the compliment of being invited 
to take part in them. I assure you that I have not 
underestimated either. An occasion like this — the fare- 
well festival of the departing — touches the sensibilities 
of all thoughtful minds. I should be sorry if it failed 
to reach mine. If eloquence or fine learning were 
at my command, I should esteem few occasions for 
their employment more api)ropriate or more attrac- 
tive than this. But it is to you, gentlemen of the 
graduating class, that I came to speak, not to the 
audience by wliich j'ou are surrounded, or the dis- 
tinguished guests who grace your festival with their 
presence. And while I can bring you no flowers — 
not even the hiunble flowers of the mountains — to add 
to the garlands of the hour, perhaps I can offer 3'ou 
something more useful and more durable than flowers 
— the suggestions of experience. 

Your feet are on the threshold of the profession in 
which I have spent all the active days of my life — one 
of the noblest of the secidar professions, in its best 

71 



ORATIONS AND ESSAYS 

estate; one that has been well characterized as being 
"as honorable as justice, as ancient as the forms of 
law " ; a profession in which you are i)robably des- 
tined to achieve whatever of success in this world 
of any sort you attain ; one that is infinite in its grada- 
tions, covering the whole world-wide distance between 
the jurist and the pettifogger. And it is the question, 
to you, not of the hour only, but of the lifetime, which 
way are you going when 3'ou leave the institution, 
by the instruction of which you have apparently so 
well profited ? By what star, in a sky which is so 
full of stars, do you propose to steer, in that long and 
unreturning voyage on which, from zone to zone, and 
from shore to shore, you will have to direct \^our own 
course across a pathless sea? I desire, therefore, in 
the plainest and simplest way, without rhetoric or 
ornament, to ask your attention to a consideration, 
of necessity hasty, of some of the conditions of success 
in the profession of the law. 

I had thought, when I came here, of saying a word 
or two at the outset upon what may be called " adapta- 
tions of the profession." It is bv no means necessarily 
a disparagement to any man to say that he has not 
in him the making of a great lawyer. He may be 
equally great, or much greater, in some other capacity. 
Professional adaptation is rather peculiar than great. 
But after what I have learned from my friends in charge 
of this school, and certainly after what I have heard 
in the admirable essay that has been read to us, in part, 
if that is to be taken as any fair specimen of j'our at- 
tainments, I may omit that branch of the subject. 
I am sure that on that point the "court will be with 
me" without argument, and that there is no gentle- 

72 



LAW AS A PROFESSION 

man before me who is about to commit the mistake 
of adventuring himself upon a route for which divine 
Providence has not provided him with a ticket. 

But another of wliat may be called the common- 
place requisites — so many important things in this 
world are commonplace — another commonplace req- 
uisite to professional success, let me name in pass- 
ing, and that is perseverance. There is no profession 
that in its earlier stages better illustrates the idea of 
"hope deferred." It will seem to you, for a while, as 
though the time never would come when you are go- 
ing to be wanted ; the field is so full of older and bet- 
ter men ; the best that you can do seems so little; other 
vocations, presenting better immediate prospects, will 
open in every direction around you. It seems a great 
wliile to wait, and very luicertain what you are wait- 
ing for. Now, there comes in the sentiment that one 
of your Boston poets has put into words better than 
mine : 

"The .surest, firmest element of hick 
Is genuine, sohd, ok' Teutonic phick." 

The pluck that can wait as well as labor ; that can 
stay as well as fight. 

The man who succeeds, other things being equal, 
is the man who " sticks " ; and the man who " sticks" 
is very likely to be the man who is qualified to succeed. 
Your time will certainly come, if you live. Every 
man's weight, in this profession, and probably in 
others, comes some time or other to be accurately 
known. The opportunity to take a high place is cer- 
tainlj' going to be given to you, if your life is spared. 
It is not so material, therefore, how soon it is coming, 
as whether you will be ready to meet it when it does 

73 



ORATIONS AND ESSAYS 

come. Are you fit for the emergencj' when it arises 
— perhaps unexpectedlj'? Have you been preparing 
yourselves for it through the waiting months — possibly 
years? Are you going to be found wanting when 
you come to be weighed in the final balance? That 
is the question. And, therefore, let me say to 3-ou, 
"When you have made yourselves members of this 
honorable and honored profession, and have found 
out that you are fit for it, break down the bridge be- 
hind you ; let there be no retreat ; take it, as 3-ou will 
take j'our wives by-and-bj', ' for better, for worse ; for 
richer, for poorer.'" 

Now, then, being in the profession, and considering 
what is the grand essential and criterion of ultimate 
success (and by that I mean the success that is worth 
having), let me state as the central idea, the leading 
thought that I have to present to-day, that the success 
of the lawyer in the long run, and the best run, and the 
onl\- run that is worth regarding, is exactly com- 
mensurate with his absolute, unflexible, imqualified 
devotion to the truth. The world has amused itself, 
and I suppose will continue to amuse itself, with a 
good deal of cheap wit on this subject. Many people 
think the lawyer has nothing to do with the truth; 
that his business is to pervert it, to distort it, to 
evade it, to crown it with the thorns of all manner 
of technicalities, and to crucifv it between two thieves. 
Well, that is very amusing, doubtless; but it is a 
serious mistake. Let me state mj- proposition again, 
and you will live to see, as I have seen, the force 
of it; and j^ou will see it now, if j-ou pause to look 
at the lives of the distinguished men by whom you 
are surrounded. Your success will be in projiortion 

74 



LAW AS A PROFESSION 

to the extent to wliich j-ou become, not onl\- the stu- 
dents, but the champions, the advocates, the hving 
examples, in all respects and particulars, of the truth. 
And this should be especially impressed upon the 
young men of our profession for two reasons — because, 
in the first place, the truth that the lawyer deals with 
is not abstract truth. The quarrels of mankind over 
abstract propositions never did a great deal of good, 
though undoubtedly they may have done a great deal 
of harm. It is the practical application of the truth 
to all the affairs and concerns and interests and rela- 
tions of hiuiian life that the lawyer deals with. In 
the next place, he is under a temptation that does not 
apply to the students after the truth in other branches, 
because there is often a pressure upon him — a pressure 
to counsel and to advocate what is not sound; and 
there is also a contest about it, and nothing in the world 
so controls a man's judgment upon any subject as 
to fight for it. Men always believe, sooner or later, 
in the cause they are fighting about; and, therefore, 
the lawyer needs to take special and peculiar care to be 
sure that he is right in his conclusions. In respect to 
legal truths, his relations are twofold — with his clients 
and with the courts. Public confidence, you will 
find, is a plant of slow growth ; it is a pretty durable 
plant when it is grown, like most plants of slow growth, 
and it only grows in that soil which produces wise, 
safe, and successful counsel. He only commands 
it who is generallj" found to be right. And then when 
the lawyer comes to deal with tribunals of justice, 
with those learned judges by whom his reputation is 
to be made, if it is to be made at all — for, let the un- 
thinking crowd say what they will, it is the judges 

75 



ORATIONS AND ESSAYS 

of the courts before whom j'ou appear who best know 
what stuff you are made of, and who are the authors 
of all real, sound reputation that you succeed in ac- 
quiring — when you come to deal with them, you will 
find that your triumphs are always won on the right 
side instead of on the wrong. It is not given to any 
advocate approaching a cause, as he always must, 
from one side — not as the learned judge approaches 
it, by hearing both sides — it is not given to any advo- 
cate to be always right. Questions of law are diffi- 
cult and intricate; courts may differ with you, even 
if the court itself be wrong; the facts may turn out 
to be other than they were represented; evidence is 
conflicting; juries are uncertain; it is not given, it 
cannot be given, to any man to be always in the right. 
But the oftener he is in the right, the better for him; 
and, as I have said, the triumphs he achieves, the steps 
that, one after another, he cuts in the solid rock and 
by which he ascends, are in behalf of the right side, 
and not in behalf of the wrong. 

Now, the great requisite, as it seems to me — the one 
that is, in its perfection, I have often thought, the very 
rarest intellectual quality that a man is capable of, 
the one to be most assiduously cultivated, and, per- 
haps, the one that best repays culture, is what, for want 
of a better term, I may call inteUectual honesty. It 
is a mental and not a moral quality. Of cour.se, it is 
one which involves high moral integrity, and can only 
exist with high moral integrity. But those who are 
honest in intentions and purposes, merely, may fall 
far short of it. By " intellectual honesty " I mean the 
faculty of seeing things just as they are — unmoved 
by prejudice, or passion, or excitement, or clamor — 

76 



LAW AS A PROFESSION 

seeing them, and reaching conclusions in regard to 
them, in a straightforward and direct, instead of a 
circuitous, waj'. That is the leading characteristic 
of every great lawyer or great judge that has ever 
lived, and the want of it is the reason why the world 
has seen so many good lawyers and good judges, 
and so few great ones. It is the rarest of qualities 
in its perfection, and the first to be recognized bj' man- 
kind when it exists. Men will quarrel over the merits 
of poets and statesmen and inventors, but when 
that magistrate presents himself in the administration 
of justice who has in a high degree this quality of 
"intellectual honesty," everybody recognizes and ap- 
preciates it. Perhaps the most illustrious example 
there has ever been, among many illustrious examples 
of that quality, was Chief Justice ]\Iarshall — that 
magistrate of all magistrates — whose splendid judg- 
ments have entered, not only into the jurisprudence, 
but into the history and liteiature of our country. 
They need no longer be consulted to ascertain what 
the law is, because the conclusions at which they ar- 
rive have long ago been laid up among the settled 
principles of jurisprudence; but as models of honest, 
straightforward, lucid reasoning, and of the highest 
judicial style, they deserve to be read, and will be read, 
in all time. You need not be reminded — because 
you have alreadj^ given some attention to the history 
of the law of j'our own country — how successful those 
great judgments were in their effect upon the popular 
mind. When the construction of the American Con- 
stitution was a thing of doubt ; when the Constitution 
itself — its success, its practicability — was questioned; 
when men's minds were wrought up to the highest pitch 

77 



ORATIONS AND ESSAYS 

of political and personal excitement, those great judg- 
ments of Marshall and his compeers ended all dispute. 
No man went away cursing the Court and resolved 
to renew the quarrel. The defeated side went away 
admitting they had been mistaken. That illustrates 
the idea I advanced just now : that this quality, where 
it exists in a high degree, is universally recognized 
b}^ mankind and commands immediate confidence. 

But, gentlemen, no man is going to achieve a com- 
plete devotion to the truth who seeks for it on one 
subject alone. He must be equally devoted to the 
truth in all things. The thoughts and the sentiments 
of his whole life on all subjects must be .shaped and 
ruled by it. I am asked, "What is the truth?" The 
truth of the law you maj^ ascertain from the authorities ; 
but what is truth at large? Man has been at war, 
ever since Cain slew Abel, upon this question. The 
truth, my friends, is the deliberate, conscientious con- 
viction of an intelligent and thoughtful mind ; that is 
what the truth is to that man ; and that is what will 
be credited to him as the truth, probably, in the world 
that will set all the mistakes of this world right — 
what some great soul has been willing to die for — 
that is "the truth." For a man to stand bj' the truth 
all the days of his life, in that sense of the word, re- 
quires another quality which, I am sorry to say, seems 
to be very rare in these days, and not to be growing 
more common, and that is moral courage. You can 
find men enough that will face batteries ; you will find 
very few that will face majorities — few who will stand 
up against the pressure of an erroneou.s, an excited, 
and a deluded popular opinion ; few that are not afraid 
to be left alone, like children in the dark ; few that are 

78 



LAW AS A PROFESSION 

content to abide in an obscurity all the days of their 
lives, if necessar}^ so that it is a respected and a self- 
respecting and an honorable obscurity — one that is 
not emerged from by "crooking the pregnant hinges 
of the knee/" by running after some miserable de- 
lusion or ioWy, "that thrift may follow fawning." 

Now, when one begins to talk to lawyers, and, above 
all, in the State of Massachusetts, on that subject, the 
name of that great man, the glory and pride of our 
profession, the greatest offering it ever made to our 
country, Daniel Webster, comes up without speaking. 
We remember his "intellectual honesty." W^e remem- 
ber how he sought after and dealt with the truth, and 
how he championed it; we remember his motto, "vera 
pro gratis " (the true rather than the popular). It has 
been the fashion, I believe, in some small quarters, to 
decry Mr. Webster; but his detractors have already 
pretty much disappeared. He is destined to stand 
the stateliest figure of his period, the noblest product 
of the history of his time. Like Mont Blanc among 
the Alps, when you are at the foot of it, and all the 
little excrescences of daily life are in the way, and 
other large hills and mountains rise up around it, you 
do not comprehend its vastness ; but when the traveller 
turns his back and journeys away to the westward, 
one after another the mountains that have challenged 
its superiority go down behind the horizon, until all 
have disappeared ; and when on the banks of Geneva 
he looks back for the last time, there stands the mon- 
arch, towering among the stars, magnificent, undimin- 
ished, and alone! 

Webster and Marshall — the magistrate and the 
advocate. These are the examples of our profession! 

79 



ORATIONS AND ESSAYS 

When I point you to their hves, I may stand aside, 
incapable to add anything to their teachings. True, 
we cannot all — perhaps none of us — be Websters or 
Marshalls. Such men are the blossoms of the century- 
plant. They mark the return of the centuries, not the 
return of the seasons. But they are the great examples ! 
The nearer we approach to them, the more elevated 
and the better we become in the profession they 
adorned. 

Now, let me add, before taking leave of this subject, 
a word or two further in regard to dealing with courts 
of justice. Of course, there are some occasional vic- 
tories to be won on the wrong side ; some wrong may 
be made to triumph over the right; some fraud suc- 
cessfully defended ; some weak judge may be misled ; 
some thoughtless jury carried away; some assassin, 
with blood enough on his hands to "incarnadine the 
multitudinous sea," may be rescued from justice and 
turned loo.se upon the community. The multitude 
may think that is an achievement, that is a success, 
that is what lawyers are for; but those are the tri- 
umphs that "make the judicious grieve." They are 
triumphs that bring no lasting reputation, no success 
that is worth anything. Not in anj' such way as that 
has the fame of great lawyers been won ! 

But elevation of character, intellectual honesty, and 
moral courage are not enough of themselves to make 
a lawyer. They are the groundwork, and the only 
true foundation, for a great lawyer. Something else 
is requisite, and that is labor — right-down, straight- 
forward, persevering, year-in-and-year-out hard work. 
For that there is no vicarious substitute; there is no 
royal road; there is no patent machinery. The man 

80 



LAW AS A PROFESSION 

who supposes tliat by what is popularly called the 
"gift of the gab," or some other similar disquali&ca- 
tion, he is going to reach the high places of profes- 
sional or judicial life, is making a worse mistake than 
if he had set out on the same enterprise deaf and dumb. 
Because the deaf and dumb man might at least think, 
and such a man never thinks. 

Permit me, then, on the subject of legal study (be- 
cause labor must be well directed or it does not amount 
to much), to make two observations, for all I am un- 
dertaking to say to you to-day is only the result of 
observation. I have no warrant of superiority to offer 
you any instructions, except that melancholy sort 
of superiority which comes from the flight of time. 
Lawj^ers — yomig lawyers and old lawyers — fail in the 
first place from tvant of breadth in their studies. In- 
stead of attempting to survey and comprehend and 
cover the whole grand system, the interdependent 
system of jurisprudence, in its length and breadth, 
they confine themselves to .some narrow place which 
is nearest their hand — the subjects on which they 
happen to be more generally and usually employed. 
Outside of those topics they know very little. When 
an emergency arises outside of that field, some larger 
man must be sought for; they know little about it. 
That, it seems to me, is the first mistake to be avoided. 
While every man is naturally more often employed in 
some particular branches of the law than in others, 
and while every man has his own natural taste for 
certain parts of the practice of the law, and while it 
is true that no man can do everything, even if he could 
learn everything, still it is he who studies the law 
as a broad and complete science, who makes himself 
F 8i 



ORATIONS AND ESSAYS 

acquainted with the whole system in all its branches, 
who becomes capable of great success. 

Then, in the next i)lace, some lawyers fail in their 
studies for loant of ckplli. They do not go down to the 
foundation principles which underlie all propositions 
of law. They are alwaj's hunting about after cases. 
They believe that " the Lord (lod Omnipotent reigneth, " 
because some court has so decided. If no such de- 
cision had been made, the question would have remained 
open for discussion. Well, such a man's law is not 
any better than his theology. It is principles that the 
lawyer needs to deal with. Cases only illustrate 
principles; they are not to be neglected or overlooked, 
they are to be studied and understoood ; they illustrate 
principles, but they do not supply them; they do not 
make them, except sometimes false j)rinciples, which 
lead the world astray, until some other Court takes 
courage to rejnidiate and put an end to them. The 
real and enduring princij)le does not come out of the 
case, but underlies and controls the case. Depth of 
study, thorough mastery of the principles of the case, 
is the touchstone and criterion; that alone makes 
the lawyer, in the high sense of the term. Such a 
man is like one who goes into a vast building, full of 
rooms, all locked. At his touch every door opens; 
he needs no crow-bar or pickaxe; the doors all open 
at his approach. Why? Because he has the key to 
every one of them, and he knows which key it is, and 
while others are resorting to all manner of expedients 
to find their way into these various apartments (per- 
haps some that have not been open for a very long time), 
they are all open to him. It is so with the science of 
the law. The master - workman has the key in his 

82 



LAW AS A PROFESSION 

pocket. He does not liave to hunt through hundreds 
of old keys to see if he can find one to fit. He does not 
need to wade through hundreds of vohimes of books 
to see whether a particular jioint has been somewhere 
or other decided. He knows how it was decided, if it 
ever was, and how it ought to be decided, if it never was. 
Well, then, leaving that subject iqion these sug- 
gestions, let me make a remark upon another point, 
and that is the importance to the lawj-er (because, 
as you perceive, I am confining my observations to- 
daj' to the question of professional success, not enter- 
ing at all upon the great field that lies outside of that), 
the importance to the lawyer of general cidlnre in let- 
ters — in literature. To be a law\ er, and a good lawyer, 
it is by no means necessary io be an advocate. There 
is no such thing as a good advocate at the bar who 
is not, first of all, a good lawyer ; but there mav be such 
a thing as a very good lawyer who is not a good ad- 
vocate. The best ideas, if they have to be expressed, 
and enforced, and maintained, recpiire the means 
of expression. Advocacy-, in its lawyer-like sense, 
in the sense that courts of justice appreciate, and 
competent lawyers api>reciate, means the power of 
clear and lucid statement, cogent, eiTective, effectual 
reasoning, pertinent illustration, felicitous presenta- 
tion. What it does not mean, but what a great many 
peo])le seem to think it does mean, is the everlasting 
talk of the men who have nothing to say. Certainlv, 
the first requisite of a successful speaker is to have 
something to say. Until a man is furnished with 
ideas, there is no precedent justifying the opening 
of his mouth — excejit one that took jilace in Balaam's 
time. If there is anv nuisance that is more insuf- 

83 



ORATIONS AND ESSAYS 

ferable than all other insufferable nuisances, it is that 
advocate — the terror of unhai)p3' courts of justice — 
who is popularly said, as I remarked before, to have 
the "gift of the gab," that is, the faculty of talking 
when he has nothing to say. It is a faculty' which, 
unlike the quality of unstrained mercj^ curses "him 
that gives as well as him that receives." Still, it re- 
mains true, after all has been .said, that the advocate 
who is going to be heard " when anvils ring and ham- 
mers beat," who is to be the champion of a great cause 
on a great occasion, must be furnished with sometliing 
besides legal knowledge. He wants langitage. Lan- 
guage is to the speaker what color is to the painter — 
the vehicle. He wants the capacity of reasoning, 
of stating, of illustrating, of carrying the minds of 
Ills hearers with him. Now, that jiower may come 
by nature to some men, as Judge Dogberry thought 
reading and writing did; but I have never met such 
an instance. When j'ou find a man possessing that 
gift, a man who is always going to be attended to 
when he speaks, and who is likely to be successful, 
on the right side at least, when he addresses an in- 
telligent tribunal, you will find that he has some- 
where and somehow filled and stored his mind with 
the culture of fine letters and literature. That is the 
source whence his gift of speech has been derived. 
Here, again, it is vmnecessary to go out of Massachu- 
setts to find the most brilliant example, perhaps, of 
the effect of literary culture upon advocacj- that ever 
appeared at the bar, and that is Rufus Choate. You 
are not old enough to remember him as I do, but the 
poor printed fragments — and they are but fragments — 
of liis gorgeous speeches tell you sometliing of the 

84 



LAW AS A PROFESSION 

manner of man he was. How the spirit and the voice 
of the old civihzations, those splendid intellectual civ- 
ilizations that have passed away — the silver-tongued 
Greek, the sonorous Latin, as well as the grand old 
English undefiled — lived again in his eloquence ! 
How the}' permeated and diffused through all his 
speech, not in imdigested fragments, disjecta membra, 
but giving a character, a life, a glory to all he said; 
until we learned from him, if we had not before, that 
languages are like men — their bodies die, but their 
spirits are immortal. They are reproduced to us long 
and long after those by whom ^hey were spoken — 
the poets, the historians, the oraLors — have all passed 
away, enricliing, strengthening, purifying, making de- 
lightful the speech of modern men. Now, I do not mean 
to say that anj' man should tr}- to imitate Mr. Choate's 
stj'le. It was unique, peculiar, original. It was his, 
and nobod}^ else's. Whoever should try to imitate it 
would be very likelj^ to make a failure. But what I 
mean to say is that Mr. Choate is the brilliant ex- 
ample of what culture and scholarship, familiarity 
with letters, does for the advocate. Mere advocacy 
never hews the way. Reason, logic, learning does 
that. But it illuminates. It is a calcium-light that 
points the way that reason hews out through the rocks 
so that the waj'faring man may see it. 

But the fl3ang hour, gentlemen, admonishes me 
that I must draw these observations to an end. It 
is so fascinating to one who is no longer young to talk 
to the young, that I fear lest I detain you too long. 
Some day, perhaps, you will sympathize with such 
garrulity. It only remains for me to wish you " God- 
speed ' ' in the profession j'ou have chosen. I am cer- 

85 



ORATIONS AND ESSAYS 

tain every one here, surelj- ever}- one that lias ever 
been young and has ceased to be j'^oung, will join in 
the sentiment of " A health to the outward-bound on 
the voyage of life." If any poor word of mine can 
linger in your memory after you have drifted out of the 
sound of my voice, and out of the sound of those better 
voices by whose instruction you have profited in the 
institution you are about to leave, let it be, first and 
last, a renewed plea for high aims, high motives, high 
culture, high and unfaltering self-respect. Shake- 
speare has embodied the idea in pregnant words : 

"What'.s brave, vvhat'.s noble, leCs do it after the high Roman 
fasliion, and make deatli proud to take us." 

That is the only road to professional success, or 
to any other success in this world, that will not turn 
to ashes in the grasp. The rewards of that road are 
certain ; they are unquestionable ; not only at the end, 
though the rewards of our profession are rather ulti- 
mate than immediate, not only when the evening of 
life brings to you "honor, love, obedience, troops of 
friends," but all the way through, by the waj^-side as 
you pass along. It is the fashion of some moralists 
to cry down this world. They seem to forget that 
God made it, and that when He had made it. He looked 
upon it and declared it to be "good." I have heard 
it said, and from the pulpit, too, "that the difference 
between a successful and an unsuccessful man was 
that the one was di.sappointed in obtaining what the 
other was disappointed in failing to obtain." I do 
not believe in such philosophy as that. I do not be- 
lieve that the grand hope and enthusiasm, the noble 
impulse and the fervid glow of youth were implanted 

^ 86 



LAW AS A PROFESSION 

only to lead to disappointment. This is a great world, 
and, say what you will, a pretty good world— full of 
opportunities, full of enjoyments, fidl of the rewards 
of high and honorable life. True, its best rewards 
will be found, after all, to be imperfect. Still, as in 
the days of the Roman poet, in all human happiness 
and all human success, surgit a)nari aliquid. The 
disappointing drop rises in every cup. But that is 
only the homage, the involuntary homage, which 
time pays to eternity. The rest of the recompense 
of a well-spent life lies beyond, eternally secured by 
the Word which, though heaven and earth may 
pass away, shall never pass away. It is the fool, 
let me remind you, my young friends, in this day 
of unbelief, that has "said in his heart, 'There is no 
God,'" and Lord Bacon has well added that "even 
the fool does not think so, he onl}' says so." When 
you have reached, as I hope you will live to reach, 
those summits that seem to you now the highest sum- 
mits, and when you find, as you will find, that tower- 
ing away above them, up into the skies, and beyond 
the reach of human vision, there are still heights upon 
heights that you have not reached, why, your journey 
has not been in vain. You are half-way up ; you are 
so far on the road to the grander heights of the better 
life. Whatever the successes and the enjoyments 
of this world may be, they would be poor enough if 
there were nothing beyond. " Sic itur ad astra " — 
so goes the steadfast soul forward towards the ever- 
lasting stars. 



V 

ADDRESS 

DELIVERED AT COLUMBIA, S. C, DECEMBER, 189O 
AT THE ANNUAL MEETING OF THE 

SOUTH CAROLINA BAR ASSOCIATION 



THE RELATION OF LAW TO 
JUSTICE 



Your kind invitation, Mr. President and gentlemen, 
has brought me a long way from home. Too far, 
perhaps, for the little I have to say. But I could not 
resist the attraction of meeting, for once in m}' life 
at least, and under ausjnces so pleasant, the Bar of 
South Carolina upon their own historic and liospi- 
table soil. 

It is the misfortune of our profession in America 
that we have so little common ground. We are spread 
over so wide a surface, and distributed among so manj^ 
jurisdictions, that the most of us never meet. We 
follow through the reports one another's labors ; we ap- 
])reciate and profit by the learning of the courts of 
States other than ovir own ; many names of judges 
and advocates become familiar to us, j-et thej- are in 
great part the names of those we never see, or, if ever, 
onl}' too rarely. It is one of the hajijiiest offices of 
associations like yours to overcome in some measure 
these boundary-lines, and to create among the Bar 
a better knowledge of their brethren and a wider 
and kindlier intercourse between tliem. 

There is no profession in the world so fortunate 
as ours in the congeniality and fraternal spirit of 

91 



ORATIONS AND ESSAYS 

its members. It has been well said of us that "We 
strive mightih' as adversaries, but we eat and drink 
as friends." It seems as if there was something in 
the quality of justice, like that of mercj', which blesses 
those who give as well as those who receive; those 
who minister at its altars as well as those who share 
its beneficence. It makes friends, somehow, of those 
who deal with it. Its continuous support appears 
to conduce to that mutual consideration and forbear- 
ance which must underlie all human fellowship worthy 
of the name. Law^-ers are constantly reminded that 
there are two sides to most cases, good motives often 
to be found under mistaken conduct, and a right to 
fair hearing and patient judgment that is to be denied 
to no man. 

The earliest origin of the profession in England, 
in the ancient societies of Lincoln's Inn and Gray's 
Inn, and the Middle and the Inner Temx^le, founded 
so long ago that " the memory of man rimneth not 
to the contrary," was surrounded and nourished by 
the bonds of personal and social, as well as profes- 
sional, fraternity. And so it has continued to the 
present time. Still, as of old, in those venerable inns, 
is spread the daily table, open to all their members; 
still, on one day in each of the four terms of the year, 
called "the grand day," their hospitalities are gen- 
erously dispensed by the benchers. And the guest 
who finds himself seated in one of those old halls, 
the place of so many memorable scenes, its walls 
adorned with the portraits and its windows emblazoned 
with the arms of the great lawyers and judges who, 
from generation to generation, through so many 
centuries, have lived and wrought and grown famous 

92 



THE RELATION OF LAW TO JUSTICE 

there, learns by happy experience that the traditions 
of the place and of the vocation to which it is con- 
secrated are those not only of learning and talent 
and high endeavor, but of the closest good-fellowship 
and brotherhood as well. 

In our own country, despite the geographical separa- 
tion I have alluded to, the profession, in all the many 
circles into which it is divided, is no whit behind in 
fraternal sjiirit and kindly intercourse. He changes 
the sky, but not the mind, who runs across the sea 
or traverses the continent, so long as he still finds 
himself within the reach of the generous recognition 
and the genial courtesy that are always to be looked 
for among his brethren of the bar. And the lawyer 
who lives to look back upon a fortunate career finds 
that its happiest memories are those of its associations 
rather than of its successes. 

But all this congeniality, so pleasant and so char- 
acteristic, is but the incident and the ornament of the 
profession, not its object. Its claims to influence 
and distinction must rest upon very different and much 
higher ground. It must be something more than 
an agreeable club of accomplished men. It has held 
in this country, thus far, a high place. It has ex- 
ercised in society and in public affairs a command- 
ing force. It has brought forth a large proportion 
of the best American men. Shall it maintain that 
position in the years that are to come? Are there 
any visible indications to the contrary which ought 
to attract our attention? 

Institutions are not immortal. Like men, they 
have their rise, their prosperity, their decay, their 
extinction. There is not one that is indispensable 

93 



ORATIONS AND ESSAYS 

to human life; not one that the world has not done 
without, and is not capable of doing without again. 
It speedilj' learns how to dispense with those which 
cease to be valuable. If the bar is to keej) its place 
and its power, it must be and can only be bj' main- 
taining the great usefulness through which they 
have been acquired. It must continue to be what it has 
been, the efficient means and instrument of salutary 
and satisfactory public justice. It is not enough 
that the administration of justice should be the osten- 
sible purpose of the vocation of the law. The onl}' 
justification for its existence, the only warrant for 
its privileges, i.s, and must always be, " the good justice 
that is done in the land." So long as that is real 
and efficient, there is no better and no more honorable 
employment. When it becomes unreal, the profession 
that lives by pretending to do it is only a mischiev- 
ous sham. 

It is not, therefore, by science however profoimd, 
by talents however brilliant, by industry however 
worthJ^ by distinctions and emoluments however 
splendid, that the calling of the law can maintain 
the place it holds in civilized society. Shovild it ever 
become only a theatre for display, a stepping-stone for 
advancement, or a market-place for gain, should it 
ever come to be generally felt that the justice it offers 
is not genuine, there would be nothing that could 
or ought to save it from "the wreck of the things 
that have perished." The rewards of earnest and 
honorable exertion in its pursuits are perfectly legiti- 
mate, and in everj' way desirable. But the}^ must 
follow, not be run after, they must be secondary, not 
primary, the fruit of what is done for others, rather 

94 



THE RELATION OF LAW TO JUSTICE 

than of what is done for self. And the profession 
and all that pertains to it will flourish and prosper 
exactl}^ in proportion to the degree in which it con- 
tinues to be the instrument of actual and substantial 
justice. 

But what is justice? The word is of constant re- 
currence; what does it precisely mean? We some- 
times hear of what is called the distinction between 
law and justice; is there such a distinction? Is the 
law, with which we have to do, or are we, its ministers, 
justly subject to the reproach of administering wrong 
under the name of right? WHiat, in short, is the true 
relation of law to justice? Perhaps you will indulge 
me in a few words on this point. 

The fiuidamental principles of justice between 
man and his fellows are inherent in the human con- 
science. The}' derive their authority from the spon- 
taneous and universal recognition of intelligent hu- 
manity, as well as from divine revelation. Moral 
philosophy is natm-al philosophy. These acknowl- 
edged principles, and the application of them to the 
conduct of mankind, constitute what is understood 
as moral justice. 

If every transaction among men, involving mutual 
rights, could be regulated, and every dispute deter- 
mined upon the abstract moral relations of each case 
as it arises, the perfection of justice would be realized. 
But that is beyond the power of human discrimination. 
Either to determine exactly what is moral right, under 
the varying and complicated circumstances that often 
surround transactions, or to deal with every successive 
case upon a special rule of its own, would be equally 
impossible ; and the attempt must result in intolerable 

95 



ORATIONS AND ESSAYS 

confusion. Only the Almighty could administer such 
justice, and He has never seen fit to employ it in the 
government of the world. 

It is as essential, also, that law should be known, 
so that conduct may be regulated by its precepts, 
as that it should be just. A vague discretion re- 
posed in a court to administer what should appear to 
be moral justice, even were it possible to effect it, would 
not be law; because its result could never be antici- 
pated, or its requirements understood. 

Legal justice ought to form the nearest approach 
to moral justice that human tribunals are capable of. 
But it must alwa3's take effect through general rules, 
applicable to all men alike who stand in the same legal 
conditions. It must neces.sarily, therefore, fall short 
of strict moral justice in certain individual cases, 
because no general rule of law ever existed, or ever can 
exist, that does not result in hardshij) in exceptional 
instances. And the distinction between moral and 
legal justice I conceive to be this: that the one is the 
justice of the particular case and the other the justice 
of the necessary general rule, which usually, but 
not always, coincides with the justice of the particular 
case. It is the framing of these general rules in 
such manner as to bring about practical justice in 
the greatest number of cases, and with the fewest ex- 
ceptions, that constitutes the science of jurisprudence; 
and the application of them to actual affairs becomes 
its business. 

Now, it will be obvious to a very slight attention 
that any system of general rules adequate to the regu- 
lation of personal conduct must necessarily divide 
into two very different classes, the principal and the 

96 



THE RELATION OF LAW TO JUSTICE 

subordinate; those that rest upon and enforce moral 
rights, and those that are prescribed by mere pohcy. 
Perhaps the one class might properh' be called prin- 
ciples and the other rules. The first appeals to con- 
science, and applies to all questions that involve con- 
siderations of abstract justice. The second invokes 
the luiderstanding only, and affects merely the con- 
venience of society and the methods of business. 

It may be the dictate of moral justice that a widow 
should receive a just provision from her husband's 
estate. But it is not a question of moral justice 
whether that provision should be a third, three-eighths, 
or one-half. It is clear moral justice that an indorser 
on whose credit money is borrowed should be answer- 
able for its payment. But there is no element of that 
kind in the inquiry whether the bill should have 
three days' grace, or what should be the time and man- 
ner of demand or protest, or the form of action. The 
same distinction between the essential and the con- 
venient runs through the whole body of the law. 

In attempting to consider, therefore, how far legal 
and moral justice are coincident, it is indispensable 
to keep clearly in view this distinction between the 
foundation and the superstructure ; between the prin- 
ciples that underlie law and the rules that result 
from it ; between that which is law because it is right, 
and that which is right because it is law. In respect 
to the one, the citizen is entitled to complain if the re- 
quirements to which he is subject do not accord with 
the fundamental principles of justice. But the vast 
mass of inferior and changeable regulations through 
which those principles are made effectual, wliich are 
prescribed by constituted authority for public con- 
G 97 



ORATIONS AND ESSAYS 

venience only, and are dictated by experience and sound 
polic3', rest upon an entirely different foundation. If 
the_v are onh- reasonable, uniform, intelligible, and im- 
partial, they answer all the purposes of justice, and 
become its machinery. 

It seems difficult for some minds to observe this 
distinction. Tliej- regard all law as arbitrary. They 
are unable to separate its conception Irom the idea 
of a superior authority which prescribes it. They 
confound its source with its enforcement, and regard 
its obligation as derived from the power wliich ex- 
ecutes it rather than from the principles on which 
it rests. This is true, as has been remarked, of those 
regulations arising out of policy and convenience 
only. To that extent law is undoubtedly arbitrary; 
government is its author, and not onlj- enforces, but 
creates it. And the mere enactment of the law raises 
the obligation in the subject to obey it, until modified 
or repealed. But it is not true of that less voluminous 
but far more important bod}' of the law which is derived 
from moral justice. That, too, is enacted and pre- 
scribed by governmental authority, or it would not be 
law. But such enactments are not discretionary, 
and are obligatory on the power that makes them. 
To observe and give effect to their principles is the 
first duty of government. Freedom in government 
consists in the power of the subjects always to compel, 
by constitutional means, and even by revolution, if 
necessary, the observance of this obligation. No 
free government could stand, or ought to stand, that 
should intentionally undertake to disregard it. 

It has seemed to me that some confusion of ideas 
on this subject has arisen from an erroneous view 

98 



THE RELATION OF LAW TO JUSTICE 

of the historic source and origin of our law. It has 
been said, and often repeated, that the common law 
of England is customary law — that is to say, derived 
from usages and customs that have been adopted 
by courts of justice because found to be established. 
Other writers assert that it is largelj- taken from the 
Roman law, as codified by Justinian. I conceive both 
these views to be fallacious ; and they appear to me 
to contribute materially to the mistaken idea that the 
principles of law are arbitrary, and maj' or may not 
consist with natural justice, according as they happen 
to be established by the authority from which they 
came. I do not agree with those who are groping in 
history for the origin of justice, or for the source of our 
law that is irrespective of justice. And in this view 
a true conception of the source of British jurisprudence 
has much more than a mere antiquarian interest. 

The Roman law, as embodied under Justinian, 
is one of the great intellectual as well as historic monu- 
ments of the world. It requires no eulogium, and 
need fear no disparagement. It is to be admired 
and to be studied. But it belonged, as every useful 
system of law must belong, to its own country and its 
own time ; it reflected the spirit of that time, and in its 
final symmetry displayed the growth and accretions 
of many centuries of Roman institutions and Roman 
life. Its influence may still be traced wherever civili- 
zation has gone, and its precepts survive in the juris- 
prudence of various European counrties — jurispru- 
dence, however, that is much inferior to our own. 
But to saj' that those juridical principles which dis- 
tinguish and give character to English or American 
law, which constitute its body and its force, are drawn 
LofC. 99 



ORATIONS AND ESSAYS 

from Roman sources, is, in my judgment, a very grave 
mistake. That system will be found, on the contrary, 
to be antagonistic to ours in very material respects, 
and most of all in the fundamental theory upon which 
it rests — the unlimited and arbitrary power of the 
government over the subject. Anglo-Saxon law 
stands upon the principles of Magna Charta, which 
would have been imjwssible under the Roman empire. 
They were altogether original in England, and have 
been thus far the exclusive property of our race. They 
constitute the difference, and all the difference, be- 
tween a free government and a despotism. They 
regulate not merely the relations between the govern- 
ment and the citizen, but they underlie the whole 
fabric of British law. It is the evolution and logical 
consequences of those principles, and those of moral 
justice, that establish and define private rights, as 
between one man and another. Strike them out, 
and the common law crumbles at once into dust. Not 
only would political liberty disappear, but with it all 
those individual rights which make it of any value. 

As the English law thus stands upon the foundation 
of personal freedom, the Roman law, on the other hand, 
finds its origin and its vitality in the ideas of imperial 
power. It {describes the rights it enforces, and confers 
as a boon to the subject what the Anglo-Saxon de- 
mands as a condition precedent to all governmental 
authority. The institutes commence with a defini- 
tion of law that most clearly presents the basis upon 
which the whole structure reposes: "That which 
seems fit to the head of the government has the force 
of law. . . . Whatever, therefore, the Emperor by 
his rescript has declared, or upon consideration lias 

100 



THE RELATION OF LAW TO JUSTICE 

decreed, or bj^ edict has commanded, becomes the 
law." Under this proposition the subject has no 
rights at all, but only such privileges as the govern- 
ment chooses to accord him. If the government is 
humane and just, so much the better for the subject. 
If not, he has neither remedy nor redress. 

It would be an interesting task to trace out bj' act- 
ual comparison the difference between these, the two 
greatest systems of hiunan law that the world has 
seen, which result all the way through, from this 
cardinal antagonism with which they set out. Time 
does not allow me to enter upon it. The student in 
comparative jurisprudence can do it for himself, and 
need arrive at no doubtful conclusion. 

Of course, I do not mean to say that the princijjles 
of justice we administer were entirely unknown to 
the Roman law. They pervade it to a considerable ex- 
tent, not as a matter of right, but because government 
was just enough and wise enough to accord them. 
The code could have been neither great nor permanent 
had it been altogether unjust. The .same sentiments 
are to be found more or less in all systems of civilized 
jurisprudence. But nothing can be more vmsafe 
than to generalize from resemblances only, or to infer 
that the principles of one system are derived from an- 
other, because they seem to prevail to a certain extent 
in both. We no more obtained these principles from 
the Roman law than from the law of Moses. They 
would exist to-day in their full force in Great Britain 
and America had both Mosaic and Roman law been 
utterly unknown to us. Our jurisprudence derives 
them from the natural rights of man, works them 
out through a different course of reasoning, and 

lOI 



ORATIONS AND ESSAYS 

to a far more beneficent and more permanent re- 
sult. 

Nor am I to be understood as saying that, in the 
mass of subordinate legal rules to which I have alluded, 
necessary to the intercourse of society, but in them- 
selves involving no moral rights, there are not to be 
found many traces and suggestions of the law of 
Justinian. The common law was not a sudden crea- 
tion : it was a growth. It began with what it found 
existing upon the earth. It did not undertake to re- 
ject all previous experience in matters of policy and 
administration, but drew nourishment and wisdom 
from all sources that were open to it. And, therefore, 
there still remain to us some of those features of an- 
cient law which earlier experience than our own has 
shown to be usefid and wise. But they are details, 
not principles; they help to perfect the structure, but 
they are not its foimdation, nor its distinctive char- 
acteristics. Even these are but the scattered vestiges 
of a vanishing and rejected system. The Roman law 
and its child, the Canon law, were brought in the full 
perfection of maturity into rude and unlettered Eng- 
land. They came in the language, and with all the 
prestige of learning and scholarship, favored by a 
conquering power, and sustained bj- the vast influence 
of the Roman Church. They were brought into con- 
flict with the primitive and luilettered ideas of justice 
that had grown up on the soil, from beginnings wliich 
had already been forgotten, hardly worthj' the name 
of jurisprudence, and finding their expression in a 
dialect that could scarcely be called a language. In 
such a contest it could not have seemed probable that 
the Roman law would have been overcome. But 

102 



THE RELATION OF LAW TO JUSTICE 

such was tlie result. Out of the simple elements of 
the Saxon law has arisen the permanent structure 
of the common law. And the erudite product of Roman 
learning and imperial power has long ago disappeared 
from our race, except so far as it is preserved in the 
remnants and fragments incorporated into the system 
that took its place. 

The other theory of the origin of the common law, 
its derivation from usage and custom to which came 
to be accorded the force of law, seems to me equally 
mistaken, except in respect to its inferior details. We 
are not indebted to the customs of any period for our 
conceptions of justice or for any rule of law that stands 
upon or declares a natural right. That the laborer 
shall receive his hire; that contracts shall be obliga- 
tory, and the rights of property in all its relations re- 
spected; that personal security- and reputation shall 
be protected from both malice and negligence; that 
the family relations shall not be disturbed, nor equal 
justice refused to any man, are not propositions that 
depend for their support upon the customs of our 
ancestors any more than upon the precepts of the 
Pandects. They would be first principles in our law, 
whatever custom to the contrary might ever have pre- 
vailed anywhere. Indeed, no custom upon any sub- 
ject, however well established, will be tolerated by a 
court of justice if found to contravene moral justice, or 
natural right, or those principles of the common law 
that are thence derived. 

But here again, in forming the regulations, not 
inconsistent with moral right, which social con- 
venience requires, custom, at once the course and 
the test of experience, has undoubtedly had a large 

103 



ORATIONS AND ESSAYS 

share. Usage is not likely to ripen into an estab- 
lished custom unless experience shows it to be a good 
one. Such customs thus verified, into which the source 
of human affairs has gradually wrought itself, have 
been and always will be largely adopted by courts of 
justice. To this extent the common law may be said 
to be customary law. But these, as I have said, are 
only the superstructure; they are not the foundation. 
To seek in their history the origin of the law is to try 
to include the greater in the less, to confound the 
secondary with the primary, to mistake the leaves 
of a tree for its roots 

hi the law of real property there is, undoubtedly, 
to be found a larger proportion of artificial and arbi- 
trary rules than exist in any other branch. Since 
the occupation of the earth by its inhabitants upon 
some tenns is indispensable to human existence, the 
subject of their rights in the soil admits of large dis- 
cussion, and has given rise to wide difference of opinion. 
The interests of society, the necessities of life, and the 
requirements of government are all so largely involved 
with individual proprietorship, that rights in land 
are more subordinate and complicated than in any 
other kind of property. Hence the rules of law that 
have grown up have been more arbitrary and con- 
ventional, and more largely influenced by custom. 
Still, even here the law is pervaded with the principles 
of natural justice. And throughout its historj', from 
the days when land was principally in the gift of the 
king, through the centuries of feudal tenures, and down 
to the present time, the tendency has been all the while 
more and more in the direction of natural right. There 
is now no prevailing rule in the law of real estate in 

104 



THE RELATION OF LAW TO JUSTICE 

this country which is inconsistent with the dictates 
of moral justice, viewed in connection with the neces- 
sary pubhc pohcy to which all rights in the soil must 
be subordinate. 

The conmion law of England and of America, vary- 
ing in detail, but the same in substance, is not the 
child of any pre-existing system. It is neither an 
inheritance from Rome nor the result of a hap-hazard 
medley of usage and custom enacted into law regard- 
less of right. It is an original growth, native and in- 
digenous to the soil where it started. The common 
law and the English language grew up together, 
twin children of the same race, inseparable in their 
destinj?-, undying in their vitality. The law is the 
outcome and the result, in all the great features that 
give character to it, of the principles of natural right 
and justice wrought by sound reasoning and long 
and patient experience into .salutary adaptation to 
civil conduct and human interests. In the growth 
of the structure that lias thus arisen Christianity 
has been a predominant influence. Whatever cavil 
may be attempted to be raised about the religion we 
profess, its history remains, and the excellence of 
its morality is undisputed. It has been truty de- 
clared to be a part of the common law; and he has 
studied to small purpose who has not learned how 
large a part that is. If the world can do without 
Christianit3''s teaching, the world's law cannot dis- 
pense with the results of it. 

The real history of anj^ body of jurisprudence that 
has become a power among men is not to be sought 
for in the mere accretion of its details. The es.sential 
inquiry is not : When was this form of action in- 

lO.S 



ORATIONS AND ESSAYS 

vented ? How did that usage become incorporated ? 
Whence came such a maxim or such a fiction? Who 
first employed such a phrase? This piece-work, how- 
ever interesting in its way, does not go to the root of 
the matter. As well might we expect, by exploring 
the chips and the sawdust that remain of the primeval 
forest, to obtain a just conception of the great archi- 
tecture into which its timbers have been wrought. We 
must look higher than that to comprehend the origin 
and philosophy of our jurisprudence. 

A system of law that obtains the mastery over an 
enlightened people, and commands that reverence 
and support without which it would speedily fall to 
the ground, must reflect the national spirit and be 
vitalized by some controlling sentiment to which the 
heart of the nation responds. There is no ultimate 
support for law but in national enthusiasm. It must 
appeal to the heart as well as to the reason. The his- 
tory of all the great codes of the world illustrates this 
truth. The Israelite perceived in the Mosaic dis- 
pensation what he believed to be the direct revelation 
of the God of Whom his nation was the chosen people. 
" Thus saith the Lord " was, in his belief, the enacting 
clause of the statutes before which he bowed in rever- 
ential submission. The Roman saw, reflected in the 
law of his country, all the imjierial power and splendor 
that made its capital the mistress of the world, all the 
individual superiority that was comprehended to him 
in the words " Civis Romanus sum" — I am a Roman 
citizen. Other svstems, less enlightened, but within 
their scope as effectual, have found their inspiration 
and central force in a fanaticism that was stronger 
than religion. And the Anglo-Saxon clings, with 

1 06 



THE RELATION OF LAW TO JUSTICE 

all the strength of his invincible fibre, to those juridical 
principles of his own race, those ancient and honest 
juridical principles, as Burke calls them, which stand 
for personal freedom, independence, and equal justice, 
and which he has found to be at once the source and 
the protection of the onl^' endurable form of human 
liberty — the libert}- that is restrained b}^ the law, 
which is itself the best offspring of liberty. 

We know that the growth of our jurisprudence from 
the beginning has taken place through the constant 
operation of two co-ordinate forces, the judgments 
of the courts and the enactments of the legislature. 
With the history of this process during the latter cen- 
turies we are familiar. But over much of it, during 
the early period, time has cast an impenetrable veil. 
The existing reports of the judicial proceedings of those 
daj's are too vague and imperfect to convey an ade- 
quate knowledge of their progress. The acts of Par- 
liament ]>rior to Richard III. are lost, and from thence 
to Henry VIII. are iniperfectlj- j)re.served. It was said 
by Chief Justice Wilmot that the common law con- 
sisted of statutes that had been worn out. But it is 
probable that the real growth of the law was much 
more the work of the courts than of Parliament, though 
in our own time the reverse is true. The results of 
that long course of decision have come down to us. 
But the story of its progress during those centuries 
is in great measure lost. What were the steps by 
which its conclusions were reached — how labor and 
learning may have struggled with the task — what 
mistakes were made and corrected — by what line ujion 
line and precept upon precept the fabric of jurispru- 
dence grew into maturitj' and symmetr}-, and gathered 

107 



ORATIONS AND ESSAYS 

jjjradiially under its protection all the rights and rela- 
tions and interests of men; all tliis we do not know, 
and we never shall know. They who wrought it left 
only their work behind them, and inscribed on it but 
little record of themselves. Their own memory upon 
earth was not the business they were concerned with. 
No historian, no antiquarian, no scholar learned in 
the law can ever give us the true account of their 
exertions, or discover to us the order of the creation 
of the noble product that remains. 

The propositions I have stated in respect to the 
origin of our law are powerfidly strengthened when 
regard is had to the character of its growth, in its later 
periods. The maturity of any body of law must 
necessarily be in the direction of the principles on 
which it is founded. The growth of a tree nuist be 
from its own roots and its own stock. The progress 
of our law has been steadily in the direction of justice. 

The early ideas of justice, though strong, were 
rude and imperfect. They were tliose of a jffimitive 
age and an uncultivated race. While certain funda- 
mental points are clear and unchangeable, the difficult 
task of applying them, by means of general rules, to 
the changeful affairs and vicissitudes of life, is a proc- 
ess that can only mature with time. But the struggle 
has been all the time towards the light. As civilization 
has advanced, as the relations of life have become 
less simi)le and its emplo3'ments more complicated, 
the boundaries of justice have grown larger, its scope 
more ample, its sentiments more liberal, its discrimina- 
tions more just. The rides of law have kept pace with 
societ3\ and have advanced with human knowledge. 
Equitable principles have been, with a steady progres- 

inS 



THE RELATION OF LAW TO JUSTICE 

sion, infused into the body of the common law, as well 
as into statutory enactments. Arbitrary- requirements 
have been softened, technicalities have been diminished, 
procedure has been simplified, the means of elucida- 
ting truth have been improved. Every lawyer knows 
that the law is more equitable now than it was a hun- 
dred years ago. And the jurisprudence of all English- 
speaking countries approaches to-day, more nearly 
than ever before, the best and most enlightened con- 
ceptions of ethical right. It is no answer to say that 
the system is not yet perfect, and has been in some 
stages of its progress far from i)erfect. No human 
system of law or government ever was or ever will be 
perfect. Infallible tribunals are not of this world; a 
scale of justice that is faultless can be constantly ap- 
proached, but can never be reached. The best we 
have seen, and the best we can hope for, is a nearer 
and nearer approximation towards the right, a better 
dawning for each successive day. 

But in si:)eaking of the progress of equity in leav- 
ening the common law, the term shoidd not be misun- 
derstood. There is the equity of equitable principles, 
and there is the equity of chancery practice. Chan- 
cery has had its bad day in Great Britain, has proved 
in some respects an oppression, has been pilloried 
in history and in literature, and has been finally and 
permanently reformed. It has become what it should 
be, an adjunct, not an impediment, to justice. The 
time has been when there was force as well as wit 
in the appeal of the Irish advocate, when informed 
from the bench that the remedy of his client was in 
chancery. "Would your lordship," said he, "send 
a fellow-being into chancery?" That time in Great 

109 



ORATIONS AND ESSAYS 

Britain has, happily, passed by. But in some parts 
of America chancery is now at its worst. Not in the 
same abuses that formerly made it obnoxious in Eng- 
land, but in a direction resulting from the same cause — 
the attempt to construct an artificial system irrespec- 
tive of justice, shown principally in the management 
of corporate affairs. Injunctions, the handy weapon 
of the unscrupulous. Receiverships that, like the 
daughters of the horse-leech, absorb but never return ; 
under color of which contracts are set at naught, 
and vested rights extinguished. Courts descending 
to the management of the private enterprises and 
speculations of parties without the skill in such busi- 
ness to avert disaster, or the responsibilitj^ to redress 
it. These are the abuses of necessary remedies. They 
afford a striking illustration of the danger of intrusting 
human hands with unlimited or undefined powers, 
and of allowing discretionary and arbitrary adminis- 
tration to usurp the place of general rules and estab- 
lished principles. They show what law may become 
under the guise of equity, if it disregards the justice 
in which equity consists; and contrasts very forcibh' 
with the con.sequences of rules that are founded in 
justice, the operation of those in the formation of which 
justice has no concern. Time will eradicate from 
American law these blemishes. They cannot long 
consist with a jurisprudence otherwise excellent. 

But for the union of justice with law it is not enough 
that thej^ should be blended in theory if they are not 
equally connected in substantial effect. It is one 
thing to announce justice and another thing to do it. 
There maj'^ be a wide difference between declaration 
and administration. All the theory and science that 

no 



THE RELATION OF LAW TO JUSTICE 

pervades the law will not be enough to preserve it from 
reproach unless it works out as its conclusion and 
result the finis et fructus, the actual vindication of 
right and redress of wrong. There may be volumes 
of law reports filled with correct legal jiropositions 
and with judgments unquestionable in their theory. 
Yet the litigants who have obtained these gratifying 
announcements may have had cause to rue the day 
when they sought them. Hope deferred that maketh 
the heart sick, unreasonable expense, luinecessary 
appeals, dilatory and evasive proceedings of many 
kinds, have worn out their means, their patience, per- 
haps their lives. The result has come without benefit, 
or has come too late. Justice has produced no fruit, 
or it has been exhausted in the attempt to gather it. 
There have been judges — I am afraid there are still 
judges — who appear to suppose that with the con- 
sequences of legal proceedings to those concerned 
in them the courts have nothing to do, so long as a 
correct solution of the questions presented is some 
time or other pronounced ; that the almost endless 
prolongation of litigation, from whatever motive, is 
the right of either party ; that appeals ought to be al- 
lowed without limitation, and new trials granted upon 
all plausible grounds. Nothing in the administration 
of justice in Great Britain appears to me more ex- 
cellent than the prompt and effectual manner in which 
it is executed. The prevention of delay, the restriction 
of unwarranted appeals, and the watchful attention 
accorded by the Court to see that the party entitled 
to redress shall actually get it, as far as possible and 
as soon as possible, makes justice a reality as well 
as a name. 

Ill 



ORATIONS AND ESSAYS 

It is not easy to discuss the subject of the practical 
dispensation of justice without adverting to the pecun- 
iary cost which attends it. That is often claimed to 
be inireasonable. Much cheap wit has been devoted 
to this point, sonietinies with reason, more often with- 
out. It is only in Utopia that we could expect public 
justice to be absolutely free, and perhaps it would not 
be altogether desirable that it should be, even were it 
possible. That is most valued which costs something 
to obtain. But all nuist agree that it is a serious 
impediment to justice, if the expense of obtaining it 
is vumecessarily enhanced. 

Where a partj' pro.secutes or defends an action in 
bad faith, he is entitled to no sympathy if he find the 
result inconvenient. But experience in the business 
of judicial tribunals teaches that even the defeated 
party has generally i)roceeded under belief that he 
was right, and under advice on which he was entitled 
to rely. He may even have been right in his conten- 
tion, since courts are fallible, and the discover}' of 
truth sometimes difficult. It is not an easv thing 
justly to apportion the necessary cost of litigation 
with a proper regard to the rights of both parties. 

Whatever may be said about the expense of judicial 
proceedings, always to a greater or less extent un- 
avoidable, and while neither the legal profession nor 
any other can undertake to serve mankind gratui- 
tously, and for the love of justice only, it is undeni- 
able that its best traditions preclude the making of 
justice a commodity that is kept for sale, and to be 
bought with a i)rice. The Roman advocate accepted 
no fee at all for his services in the forum. To the 
British barrister his fees are an honorarium onlj% 

112 



THE RELATION OF LAW TO JUSTICE 

not constituting a leg:al indebtedness, nor recoverable 
by action. He ma3' not decline the offer of a very 
moderate retainer in any court where he practises, 
nor in any case fit to be tried. In that i)eriod of Ameri- 
can history which produced its most celebrated ad- 
vocates money was altogether a secondary considera- 
tion among them, and the emoluments of the Bar were 
so slender that, in the oft-quoted words of the greatest 
of them, the American lawj^er "worked hard, lived 
well, and died poor." 

I do not allude to the legal profession, especially, 
when I say that money-making is coming to be the 
curse and blight of modern intellectual life. It tends 
to turn all its forms into trade, and to depreciate its 
excellencies, as it increases its profits. What used 
to be done for the sake of art, of science, of honor, 
and of humanity, out of which he who did it only 
lived, and sometimes died, is done nowadays for cash. 
Brain work brings ready money, and money brings 
a splendid and ostentatious life, and too often trains 
up children to do no work at all. We cannot reform 
the world in this respect, or any other. We must 
take it as we find it. But we may at least have a care 
that the money-changers shall not become paramount 
in the temple of justice. 

In the observations to which you have done me the 
honor to listen, you have heard nothing new. In 
these daj's of universal and perpetual discussion, 
originality is no longer to be looked for among ordi- 
nary men. But even the commonplace is not always 
without interest, and repetition itself is sometimes 
tolerable. 

H 113 



ORATIONS AND ESSAYS 

The topics I have touched iii^on are germane to 
the pursuits and objects of your society. They will 
never lose their importance, and may be considered 
and reconsidered with advantage by us all. The 
quality and character of the administration of jus- 
tice, the place it shall hold in general usefulness and 
in public confidence, the protection it shall afiford, 
the influence it shall exert, are subjects that do not 
grow old, and are never far away from the heart of 
the lawyer or the student of law who is worth}' of his 
vocation. There is no nobler employment than to ex- 
ecute justice; there is none so essential to the exist- 
ence of society or the well-being of mankind. Be3'ond 
any people that ever lived the English-speaking race 
have enjoj^ed the advantage of impartial justice, drawn 
from the fountains that were native in its mother 
countrj-. It has become so common that we are in 
danger of regarding it as a matter of course. Like 
good health, it is only imperfectly valued until it is 
lost. But the wise man will consider whence it comes, 
and on what it depends. 

Public justice will be endangered if the principles 
of the law are permitted to be warped, either by statute 
or judicial decision, into arbitrary and artificial rules 
inconsistent with right ; when what is called learning, 
or is thought to be expediency, is put in the place of 
what is known to be just. It will be endangered, 
whatever the theory of the law may be, if chicanery 
or delay or trick or device of any sort is allowed to 
prevent its prompt and efTectual administration. It 
will be endangered if it be suffered to become a money- 
making trade, repulsive to the general sense, and 
too costly for the common purse. And it will be en- 

114 



THE RELATION OF LAW TO JUSTICE 

dangered if those concerned in it shall ever fail to main- 
tain its old traditions of scrupulous honor and ab- 
solute fidelity. The justice of the common law will 
not long endure a coarse or venal touch. It has been 
accustomed to be dealt with by gentlemen. In no State 
has this been more conspicuously true than in South 
Carolina. Long may it so remain. 

From small and rude beginnings in the childhood 
of modern civilization the body of our judicature has 
grown up through all these centuries into the stately 
proportions it now display's, because, and only be- 
cause, it has been fovmded upon justice, inspired by 
justice, and the instrument of justice. 

The splendor of its historj-, the memory of its great 
names, its priceless services to humanity, all that it 
has been, all that it is, are the inheritance of the Bar, 
not, I trust, to be tarnished in our hands, or in our time. 
No one among us, I am sure, needs to be reminded 
of the debt he owes to his profession, a debt that in- 
creases always in {proportion to what the profession 
has given him; and to be paid, not merely in the 
honorable discharge of its duties, which is much, nor 
even in contributions to its learning and its intellectual 
.strength, which are more, but especially and chiefly 
in helping to maintain and improve the quality upon 
which it all depends, by making law more and more 
nearly the equivalent of right, and by smoothing the 
path and clearing the way of every man, high or low, 
who, standing in need of justice, shall set out to find 
it in the tribunals of his country. 



VI 

ADDRESS 

DELIVERED AT EDINBURGH, SCOTLAND, NOVEMBER, 1886 
AT THE OPENING OF ITS SESSION, BEFORE THE 

EDINBURGH PHILOSOPHICAL INSTITUTION 



LAW OF THE LAND 



In the Magna Cliarta of King John, the most signif- 
icant expression in its most celebrated clause appears 
a phrase familiar now, unknown till then, " per legem 
terrae" — bj' the law of the land. It indicates there 
at once the criterion and the bulwark of the liberties 
of Englishmen, and, with its context, introduces for 
the first time into the theor}' of civil government, and 
crystallizes into language not destined to perish, the 
idea long moulding and shaping in the unlettered 
Saxon mind, that human rights are the foundation, 
and not the concession, of hmnan authority'. 

Whose phrase it was, we do not know. It was in- 
scribed there by a forgotten hand. It has not been rare 
in the growth of the English tongue that some new 
form of words, struck as this was out of the heat of a 
critical time, and compressing as this does a great 
thought into small compass, has entered at once and 
for always into the general speech of men. But it 
is the meaning rather than the origin of the words I 
have quoted from the Great Charter that I desire to 
con.sider. They are repeated oftener than they are 
understood. It may be useful, possibly, in this day 
of many novelties, to recur to their original significance, 
and to trace their relation to the political fabric wliich 
is the common inheritance of all our race. 

119 



ORATIONS AND ESSAYS 

I ask 3'our attention, therefore, to some observations, 
of necessit}' very general and verj^ brief, iijjon " The 
Law of the Land. ' ' 

The term is often made use of in a vague way, as 
inchiding all the law which has force or is administered 
in the country. I do not so imderstand it. I regard 
and shall employ it as embracing only that which 
is fundamental. I conceive the law of the land to be 
the law that runs with the land, and descends with 
the land. Not the general mass of changefid legisla- 
tion, or judicial decision "perplexed in the extreme"; 
but that higher law under which legislation itself 
obtains its authority, and courts their jurisdiction. 

It was in this sense, beyond doubt, that the v/ords 
were employed in Magna Charta. Otherwise the 
guarantee of personal liberty there contained would 
altogether lose its force. It would no longer stand 
declared that the libert3' of the subject shall be invio- 
lable by government; but only that it shall find its 
measure and its superior in whatever may have the 
form or force of law for the time being. And the 
charter would merely have served to re-establish the 
old system of arbitrary power, wlaich it was designed 
to i)ut an end to. 

In the written Constitution of the United States this 
distinction is clearly brought out. The fundamental 
personal and political rights which may not be in- 
fringed are enumerated and set forth, and are placed 
beyond the reach of any department of the govern- 
ment. The domain of constitutional law is thus 
completely separated from that of statute law. 

The unwritten Constitution of Great Britain, as 
universally vmderstood, is of the same effect. Though 

120 



LAW OF THE LAND 

its ultimate construction is intrusted to Parliament, 
that bodj' is equally bound to refrain in legislation 
from infringement of constitutional riglits. It has 
never in recent times disregarded the limit thus im- 
posed ujion its action. 

It is to be remembered, therefore, as the starting-point 
necessarj' to a clear comprehension of the law under 
which we live, that it consists of two great component 
parts, differing widely in their character, the one raised 
upon the other — the law that changes, and the law 
that does not change. The imchangedble law is that 
which protects the necessary and superior rights of 
man. 

The theory upon which our system of government 
rests is that mankind possesses certain natural rights, 
usually described as those of life, liberty, and prop- 
erty, indispensable to human freedom and happiness. 
That these rights are not derived from, but are an- 
tecedent to, government, which is instituted for their 
maintenance as its first and principal object. That 
it can never be allowed, therefore, to infringe or dis- 
regard them, nor to fail to offer redress for their in- 
vasion. And that when it ceases to respect and up- 
hold them, the obligation of allegiance terminates, and 
the right of revolution begins. 

These constitutional principles are of perpetual 
duration, and of perpetual authority, because the 
natural rights they maintain are of perpetual obliga- 
tion. No change of time or circumstance, no new 
discovery in political science, no modification of the 
forms of government can affect their validity, or re- 
strict their control. 

The principles of law which I have thus endeavored 

121 



ORATIONS AND ESSAYS 

to state belong exclusively to the Anglo-Saxon race. 
They are the distinctive characteristic of the common 
law of England, wliich is likewise the common law of 
the English-sj)eaking race everywhere. In no other 
.system are they to be found. 

They were the offsi^ring of no man's creation, the 
product of no man's brain. Through centuries of 
vigorous Sa.xon life, through much oppression and 
violence, through the rise and fall of kingdoms, and 
wars and tunuilts innumerable, the great idea that 
underlies free government slowly ripened into perfec- 
tion. It found its first definite and permanent ex- 
jjression in Magna Charta, and became there the foun- 
dation of English law, to distinguish it thenceforth 
from all other law, and to conduct the people to whom 
it belonged, and their descendants, to a prosperity 
which the world had not seen before. 

I do not mean to say that under no other sj'stem 
of government are the personal rights maintained. 
They may be upheld to a greater or less extent, and 
[)ossibly to the full extent, under others. A wise 
and humane despot might promulgate a code of laws 
which should afford as complete a security to these 
rights, while it lasted, as the law of England does. 
But under no other theory than ours can they be as- 
sured of a permanent protection. In governments 
based upon different principles, personal rights, so 
far as they exist, are derived from the governing power, 
which may, therefore, at any time abridge them or take 
them away. Human experience has shown that rights 
which arc thus conferred are, sooner or later, lost. It 
is only when they are conceded to be inviolable, and 
when the observance of them by government becomes 

122 



LAW OF THE LAND 

the condition of its existence, that they ever can be 
Ijermanentlj" safe. 

There is still another branch of the constitutional 
law which is practically unchangeable in its character. 
To the protection of the cardinal rights, it has been 
found that certain political institutions and cer- 
tain juridical principles and processes are necessary. 
The division of government into three independent 
branches, the executive, the legislative, and the judi- 
cial ; representation in Parliament ; the maintenance 
of courts of equal justice, the writ of habeas corpus, 
the trial by jury ; these, and other principal features 
in the administration of civil authorit}", are not of 
themselves essential to human enjoyment. They are 
only so many devices shown by experience as well as 
by reason to be indispensable to the just protection of 
the rights that are essential. The fundamental law 
divides, therefore, into two branches — the principles 
that define human rights, and the machinery estab- 
lished for their security. 

Upon this foundation of constitutional principles is 
leared that other portion of the general structure of 
the common law which I have referred to as the law 
that is subject to change. It is deduced from these 
principles by their gradual application to the various 
relations of the individual to his fellows and to the 
community. As civilization becomes more exigent, 
society more artificial, industrj^ and business more 
various and complicated, and property more intricate 
in its forms and titles, the simple principles in which 
law has its origin require to be develoj^ed and extended. 
New relations spring up, new regulations are found 
necessary, fresh remedies have to be sought for. To 

123 



ORATIONS AND ESSAYS 

meet these rctiuiremcnts the law constantly advances, 
and becomes perfectly adetiuate. All law that is worth 
anything comes by growth, not by arbitrary creation. 
It arises out of an increasing and ever-varying ne- 
cessity. Its movement is constant, sometimes in the 
wrong direction, it is true, but in the long run gener- 
ally in the right direction. When law ceases to grow, 
society ceases to advance. 

It would be an interesting topic, but outside the line 
of my remarks, to trace more i)articularly the nature 
of the growtli of the body of the common law from 
its root and foundation, the law of the land. Out of 
it arise numberless legal rights, changeable in their 
character, more or less important and desirable, not 
absolutely necessary. Thcj^ are all only provisions 
for carrying out, in the numerous relations of life, the 
enjoyment of the cardinal rights of life, liberty, and 
property, in the liberal acceptation of those terms. 

Life, which includes security of person, of character, 
and of health; liberty, including the right to go and to 
come and to stay, to enjoy the family relations, to pur- 
sue honest industries and innocent recreations, and to 
exercise freedom of opinion, of worship, and of speech ; 
and private property in all its forms and condition.s — 
these are what the law of the land secures to the sub- 
ject. And the province of the general body of the law, 
in its vast elaboration of detail, is only to increase 
the security, to diminish the interru])tions, to improve 
and extend the enjoyment of these fundamental and 
indi.spen.sablc rights. 

When this is accomplished, the power and province 
of civil authority are exhausted. Human law can 
do no more for man. All that remains to make life 

T24 



LAW OF THE LAND 

happy and prosperous must come, under Providence, 
from personal conduct and exertion, for whicli the 
field is thus opened and protected. 

I have been thus elementary, and 1 fear at the same 
time wearisome, in order to point out as clearly as I 
can just what it is that the law of the land secures, 
and to emphasize the distinction between constitutional 
rights and merely legal rights. The first, underlying 
government, and not to be infringed by its i)ower; 
the latter, derived from government, held subject at 
all times to its action, and liable to be modified or 
withdrawn. 

The line which divides these two classes of rights 
is the one which defines and limits the power of the 
majority. In respect to merely legal rights, that 
power is ultimately supreme If inconvenience, hard- 
ship, or injustice result from its exercise, they can only 
be corrected through the law-making power itself. 
But over constitutional rights the popular voice has 
no control. Majorities are but an agency of govern- 
ment, which in all its agencies is subject to constitu- 
tional limits. It is the failure clearly to observe this 
distinction that is at the bottom of some movements 
I shall refer to hereafter. 

What, then, is civil liberty, and what is free gov- 
ernment? We know that we enjoy them; we boast 
of them ; we value them. But, after all, what do they 
exactly consist in? 

Civil liberty is simply the enjoyment of the fun- 
damental rights in their full extent. And free govern- 
ment is the government, appropriate in form, that 
secures their permanent protection to all men alike. 
Not by a security dependent upon the will of the gov- 

T2S 



ORATIONS AND ESSAYS 

erning power, but by one inherent in the government 
itself, and co-extensive with its existence. 

It is a very common mistake to suppose that the 
freedom of government consists in its form, and not 
in its substance — in the means that should maintain 
freedom, rather than in the freedom itself. Forms 
of govermnent, of whatever sort, are onh' forms. The 
true test is not in the nature of the machinery, but in 
the result that conies of it at last. The machinery, 
in and of itself, is only a perpetual burden; we should 
gladly dispense with it, if human nature were good 
enough to do without it. It is but a means, not an 
end. 

That a form of government in which the ultimate 
power is in the people is necessar3' to the maintenance 
of freedom is true. That such governments are nec- 
es.sarily free is not true. They have been usually 
free because they have not been perverted from their 
jjurpo.se, not becau.se it is impossible that they should 
be. The opposite to free government is arbitrary 
power. That might be administered by a despot, or 
by a class. Of a despotism there is at this day and 
in our race no danger. Of attempts at establisliing 
class government there is danger. When in any 
form of pojndar government equal protection of the 
fundamental rights or of any of them ceases, that gov- 
ernment, though its form remains, is no longer free, 
and becomes an arbitrary authority unjustly exer- 
cised by one class over another. By what means 
this comes to jjass is immaterial. Arbitrary' power 
may exist in a multitude as well as in an emperor, 
in a democracy as well as in an oligarchy. It may be 
the government of the few or the government of the 

126 



LAW OF THE LAND 

man}'. It is not the less class government because 
the class that governs is the lowest class ; nor is there 
any advantage in government by the lowest class over 
government by the highest, if there is to be class 
government at all. No class government can be free, 
because the essence and indispensable condition of 
free government is equality of rights in all classes. 
And the object and necessary result of class govern- 
ment is to attack the just rights of one class for the 
benefit of another. 

When a popular form of government thus ceases to 
be free, and becomes a class government, in wliich 
fundamental rights are not equally protected, it ex- 
tinguishes itself. Anarchy soon follows. And a 
new system of arbitrary power arises out of the ruins, 
dictated by the necessities of society. 

Free government or civil liberty, then, is in the end 
simply the maintenance, by its people, of those fun- 
damental and therefore constitutional rights that are 
declared by the law of the land And to the existence 
of those rights two conditions are essential — first, that 
they should be inviolable ; second, that they should be 
equal. If not inviolable, they are not rights, but only 
enjoyments on sufferance; if not equal, thej' are but 
the privilege of a class, whatever that class may be. 

Of the three great divisions of natural rights to which 
I have referred, the first two are not in these daj'S 
challenged. It has not been proposed in our time 
to place either life or liberty at the disposal of any 
other i)ower than that of the regular administration 
of justice. No reformers have recently appeared who 
desire to improve society by taking the lives even of 
those guilty of the offence which history shows to be 

127 



ORATIONS AND ESSAYS 

least pardonable b\- mankind, that of differing from 
the majority in opinion. Thus far, at least, the law of 
the land stands unquestioned. Hut in various parts 
of the world at the present time, in many forms, under 
many theories, and upon widely differinj:^ i)ropositions, 
the right of i)roperty has been brought into (juestion, 
has given rise to violent discussion, and has become 
sometimes the subject of serious disturbance. 

In some cjuarters it takes the form of active opposi- 
tion to all ]>rivate i)roj)erty and to all government. 
Such j)ropositions are only api)roj)riately met by the 
bullet and the rope. 

In other directions we hear much of a recently dis- 
covered and niucli elaborated antagonism between 
labor and what is called capital, as if it were possible 
that elements should be antagonistic which are es- 
sential to each other's existence. It seems strange, 
since labor has been the condition of human life ever 
since the creation, that the science necessary to the 
adjustment of its relations should have been born so 
late. It is to be regretted, now that it has come, that 
its [)roi)ositions are not more easily imderstood. 

Elsewhere the ineciualily in the distribution of prop- 
erty is (lie subject of debate; the condition of the 
rich and of the i)oor is vividly contrasted, and many 
theories of legislation to counteract and ecjualize it 
are brought forward. 

As civilization has advanced, and the field of human 
exertion has grown wider, as the means for the crea- 
tion of wealth have increased, and the ability of man- 
kind has been more and more turned to its acquisition, 
inequalities in its possession and in its dis])lay have 
become more numerous and more conspicuous, and the 

128 



LAW OF THE LAND 

line between the rich and the poor has been more sharj)- 
ly drawn, that was plain enough before. That this 
disparity should be removed by legislation, that it 
should become the office of the law to secure in some 
waj^ a more equal distribution, and to enrich poverlj' 
by diminishing wealth, that the laborer sliould some- 
how come to receive more than his hire, and that the mi- 
fortunate, the idle, and the prodigal should share the 
prosperity they have not created, are specious i)roposi- 
tions, eagerlj' listened to by those whom thej- jjromise 
to benefit. The\- afford very facile material to jjliiloso- 
phers who are more gifted in speecli than in clear under- 
standing, and to demagogues who wish to excite the 
multitude rather tlian to instruct them. 

One among many of the favorite methods by which 
reformers of this sort purpo.se to equalize property is 
to bring to bear upon those whom prosperity has ren- 
dered obnoxious the power of excessive and unequal 
taxation, and, under the cover of this abu.se, to take 
from the rich for the benefit of the poor. 

But it would be foreign to my purpose to discuss 
in detail, or even to attempt to state, all the forms which 
the.se theories assume in different countries, and under 
varying circumstances. They have made noise enough 
to be sufficiently well known. Their existence can- 
not be disregarded. There is in the air of the world 
just now a vague idea that the relations of this subject 
are to undergo some change, which no one is able 
clearly to describe. There is a feeling of indefinable 
alarm on the one hand, and of equally indefinable 
expectation on the other. 

Most of the .schemes I have alluded to had their 
birthplace on the continent of Europe. They are not 
I 129 



ORATIONS AND ESSAYS 

the natural growth of countries where the common 
law prevails. But their authors avail themselves 
of the freedom of speech and of the press which is 
accorded in those countries to attempt to propagate 
these ideas. 

Under whatever ingenious form they are produced, 
they all tend to the .same result : to invade the right 
of private property as heretofore secured, and to take 
by law from one man in order to give to another. To 
enable one set of men to get something from another 
without giving anything in return. In place of the 
steadfast and uniform protection afforded to every 
man by the law of the land, in his lawfully acquired 
possessions, to substitute some new method of dis- 
criminating justice in the distribution of the things of 
this world whereby the rich should become poorer, 
and the poor become richer. It is not in this succinct 
form that these propositions are usually put forth by 
their advocates. When established principles are at- 
tacked, a new vocabulary is always invented, not to 
convey, but to conceal, the meaning of its authors. 
When stripped of their verbiage, and pursued to exact 
results, the conclusion I have stated is that at which 
all such proposals arrive. And wherever and when- 
ever they are brought forward, they are accompanied 
by what is indeed their necessary concomitant, an ef- 
fort to enforce them by creating political parties formed 
upon class lines, and by stinuilating the poor to or- 
ganize against the rich. 

When we regard the extent to which poverty, mis- 
fortune, and distress prevail, under the best conditions 
that can be devised for their relief, it is impossible to 
refuse attention and sympathy to any scheme of social 



LAW OF THE LAND 

or legislative improvement which promises to lighten 
their burden. I am far from intending to say that 
nothing can be done in this direction by wise and 
judicious legislation. Much, indeed, has already been 
done, and it is but fair to hope that more will yet be 
effected. 

Upon this point I especially desire not to be misun- 
derstood. I am dealing with the right of property; 
I am not justifying its abuse. The fundamental law 
that secures its title does not place the owner of it 
beyond the power of legislation, in many particulars 
connected with its use and its disposition, in respect 
to which society has its just claims. The law of the 
land does not contemplate its subject as an isolated 
individual, having personal rights that carry no cor- 
responding obligations. He is but one member of 
the great commonwealth in which all its people are 
entitled to equal consideration with himself. Up to a 
certain point restrictions and limitations touching 
the right of property are not only allowable, but neces- 
sary. It may undoubtedly be dealt with, in respect 
to the form it assumes, as well as the manner in which 
it is enjoyed, when such regulation is necessary to 
the common interest. That individual or corporate 
property may be taken by government, when the 
public necessity requires it, if just compensation is 
made for it, is one of the conditions upon which it is 
held and protected. In the United States Constitution 
this condition is expres.sly declared. Such a proceed- 
ing is not a deprivation of property, but is only turning 
it into money. What constitutes public necessity is a 
question of grave importance, the decision of which 
may vary widely in different countries, and under 

131 



ORATIONS AND ESSAYS 

different circumstances. I do not undertake to dis- 
cuss it, far less to anticipate what discussion it may 
require hereafter. 

But to regulate property for the general good is one 
thing, to take it away is quite another. The fatal 
objection to the schemes I have referred to is that thej- 
strike at its title, not at its form or its use. Under 
color, and doubtless sometimes with the real hope of 
bringing about an apparent justice — attractive in 
theory, impossible in fact— they all attempt, under 
whatever disguise, what in plain English amounts 
to this, to benefit one part of the community by the 
robbery of another. 

Such theories transgress the scope and province of 
law. There is a limit to the field of civil authority 
witliin which it is indispensable, outside of which it 
is intolerable. In its province it is supreme ; beyond 
that, all attempts to force it must inevitably fail. 

The idea is too common that in legislation is to be 
found the panacea for all sorrow, and the relief for all 
misfortune. Even under free government the world 
may be governed too much. Liberty, to be worthy of 
the name, should be restrained no further than is 
necessary for its preservation. When the efficacy 
of law is exhausted a large field of human conduct 
still remains over which sound policy, enlightened 
morality, and the precepts of Christianity exercise 
the onlj' control that is possible. 

Invasion of the right of property defeats also the 
equality of the law. Equality of rights is ordained 
of God. Inequality of condition is equally ordained. 
The one may be temporarily broken down; the other 
can never be overcome. It has pleased Providence 

1.32 



LAW OF THE LAND 

to accord to but few the capacity to accumulate or to 
preserve property to any great extent. It is a benef- 
icent provision that the mass of mankind must hve 
by their industry. It is a blessing, not a curse, that 
by the sweat of the brow we shall eat bread. It would 
be an unhappy world if amusement were the sole 
employment of its inhabitants. Inequality of acqui- 
sition always has been and alwaj-s must be great, rai- 
der whatever conditions of government. The principle 
of law, therefore, which secures to every man his own, 
while it maintains equal rights, cannot prevent most 
imequal results. There is always to be seen, on the 
one hand, distress we should gladly alleviate; on the 
other, examples of excessive accumulation, of legal 
rights pushed to a hard extremity, of wealth unchari- 
tably and unwisely applied, which in the individual 
cases we could wish were made impossible. 

The same result attends the observance of the other 
principal rights secured by the law of the land. There 
are those in every comminiity whose death or whose 
perpetual imprisonment would be a gain to society. 
But the equal protection must, nevertheless, be afforded 
to their lives and liberty that is accorded to the bene- 
factor of his race. When the barrier of perfect security 
to the natural rights, to all men alike, is once removed, 
when these rights, or either of them, come to be held, 
not as absolute, but as subject in any degree whatever 
to the discretion of governmental power, there is no 
limit and no criterion that can be prescribed to that 
discretion. The first innovation is regarded as es- 
tablisliing its own propriety; that it has failed to an- 
swer its purpose, as it necessarily must fail, is taken 
to show that further experiments in the same direction 

1.3,3 



ORATIONS AND ESSAYS 

must be attempted. Oppression of the poor for the 
benefit of the rich is a form of tyranny that is promptly 
recognized and condemned. But it is not so easj^ for 
some to perceive that the oppression of the rich for 
the supposed benefit of the poor is equally in deroga- 
tion of the principles of free government, and equally 
destructive in the end. All such experiments result 
in a warfare of classes. And in such a conflict, if 
carried out, whichever party prevails, free govern- 
ment is lost. 

It is a grave error, therefore, to believe that invasion 
of the right of projjcrty is for the benefit of the poor. 
The result is precisely the reverse. Free government, 
while uncjuestionably the highest and best civil and 
social condition for all who live under it, is especially 
and above all to the advantage of the general mass 
of men. It is in itself the elevation of the common 
peojjle and their emancipation from the tyranny of an 
oligarchy. Since the jtrinciples of civil and religious 
liberty were established in England the advance of 
civilization and prosperity has been greater than in 
all the history that had gone before. The improve- 
ment in the condition of the body of the iieoi:)le, in all 
respects, has been steady and rapid. 

When free government is lost by being allowed to 
degenerate into class government, the strong are 
likely to take care of themselves. It is the weak who 
suffer. The wealthy may be made the first and most 
conspicuous sufferers. But they will be by no means 
the i)rincipal victims in the general catastrophe. Lib- 
erty is not the privilege of the strong; it is the pro- 
tection of the weak. 

Nor is it the rich who are chiefly interested in the 

134 



LAW OF THE LAND 

maintenance of the right of property. The less a man 
has, if he has anything, the more important it is to 
liim that it should be safe. No property can be safe 
when once the general security that protects all alike 
is lost. It is a delusion to imagine that it can be im- 
paired to a certain extent, and maintained for the resi- 
due ; that it ma\' be made the subject of a fluctuating 
protection on the lines of moral justice, at the will of 
the governing power. There can be no middle ground. 
Either the title to lawful property must be universally 
protected or it ceases to be j)rotected at all. 

That it is not the few but the many who are most 
largely benefited b}' the protection of the right of 
I)roperty has been strikingly demonstrated in the 
history of the United States. Under the American 
Constitution, as I shall jwint out hereafter, extraor- 
dinary safeguards have been devised which have thus 
far rendered that protection absolute and certain. 

The result has been the most general distribution 
of property and the largest individual prosperity that 
have ever been known in civilized life. The glory of 
America has been well said to be in the homes of its 
peoi)le. Millions of those homes, the property of their 
occupants, held in a security of tenure liitherto un- 
questionable, stretch across the continent from sea to 
sea. It is true that, under the same equal protection, 
the millionaire enjoys and increases his accumula- 
tions, sometimes ill-gotten, sometimes ill-spent. But to 
assail him by impairing the general security to prop- 
erty that the Constitution affords would be like try- 
ing to stay the rain from heaven because it falls upon 
the unjust as well as upon the just. Or like impugn- 
ing the beneficence of the Almighty because under its 

135 



OK AT IONS AND ESSAYS 

impartial rule tlie wicked man still flourishes in his 
time. 

The materia! question, under all forms of free govern- 
ment established by the English-speaking race, is 
how shall this law of the land on which they dei)end 
behest maintained. It is idle to deny that it is insidi- 
ously and speciously threatened in many quarters in 
the manner I have jwintcd out. 

In the Constitution of the United State.s, the political 
system of Great Hritain has been largely followed. 
Nearly all the great features which give it character 
are substantially adopted, except that of an hereditary 
e.xecutive, and an hereditary ui)i)er house. But in 
the provision made for the security of personal rights 
against interference by the government exists a dif- 
ference between the two systems, less conspicuous, 
but really far more material than any other. 

The American Constitution declares that " no man 
shall be dc])rived of life, liberty, or property without 
due process of law." And that " no State shall pa.ss 
any law impairing the obligation of contracts." The 
words, "due process of law," have been held, both 
in England and America, to be precisely equivalent 
in their significance to the i)hrase in Magna Charta, 
" the law of the land." The jirovision is, therefore, the 
same imder both systems; the difference is in the 
manner of its enforcement. 

Under the British Constitution, Parliament is su- 
preme; and, although bound to respect and maintain 
the personal rights, is its own judge at all times of what 
constitutes their infringement. The American Con- 
gress and the legislatures of the States are equally 
bound to observe constitutional limits in legislation, 

136 



LA^ OF THE lAIvri) 

and 10 jasE do [ferr lia* "would in arrr issjeci iniriiist 
TTsrr.. Sxn i. tn- iius£:Ti;r-eberisiaii oi via: those liit- 
jtF Tegxors, or tin- -i-r — e '.if •:sl — ^ ■' '''Irucsl eiicnfc- 
iBem, leeiskititJi. .ci^t jjia.. -jransgress^ 

cunstinitiai:^ pronsianE, iiffi couriE of tie counrrTr, 
and. m titt iiis: re -f 

SiHies. vmi;:: li „.. . „._ _ i...,..;^ 

and xeoiess apons: such ieE^siatian io arj person 
viio nffirr t»e aSecied irr u. An act vs&sA m comra- 
Tentiar; cif ibis or airr cither : 

iE iisid 10 he void, and cons_-...-. :.. .... _ .. 

iie officer viiti auempiE ic enionsr it. 

Tise jiower of jxtmcaJ rehef agr.-j-nsi imconsiiniiioral 
IteTt^ is notsfiinEi' ~: " ■ ' '^ 

The ta-^tg-uagt I h^ t „___i_ _^ 

•fhar instnimsni an lie siibiect. The jurisdictiaD is 
fedncsd Vr an inerrhabie logic, in ihe consiriKrtion 
liEai ^'T^rc hsen E-'^'-en i' the C ' * — :" ' " '~ ~ Ihe rs- 
Btnctions vhich r im:i:.'se? u: _ . ^ _ iithccirr. 

To iiK d^ifSr proiiintrns' ihe istssagt c^if iaws -rrr- 
pairmE lie ahiiErsnon of a contraci snch an interpre- 
"Etian 'Tat: heen Erven m a lorxE ?■■■ — -■- ' decisions irr 
tie Supreue Court, tijai nc' iav .tarn: car he 

aSecied in arj vsrac-diax of is ohiisation. or in tie 
Tigrc It' isve r. emorced rrr proper judicsil pnceed- 
inr. irr iecis^tion Hubse:--'-' -- tie canrad. And 
thouch this p-oTision ap: • . -iv tie action of the 

5s te istisiatures. and not vj iisit of ConEiesE, tie 
xsisss are '^sry lev" in "vriiicii ConEress can iesris'ste 
ai all "Upon rnatiers of prrvate contract, vrihch are i^ 
pdnapa&r -ro le TSEUsied irr iiie 'sscvr of "ie Sates. 
3Jc' instance of jeEisiation trr "ihai Dodj. lenoinE tc im- 
pair -fie ohiiEatian of comraoE. ists ever occurred. 

^37 



ORATIONS AND ESSAYS 

The consequence is that not only life and liberty, 
but property, individual or corporate, in every form 
in which it can lawfully exist in the United States, 
have been made doubly secure against invasion, un- 
der any form or pretence of governmental authority, 
not warranted by the law of the land. First, by the 
obligation resting upon the legislative power to ob- 
serve constitutional boundaries; and, secondly, by 
the authority in the courts of justice, if those limits 
are exceeded by legislation, or by executive act, to 
afford a complete relief. It is beyond question that 
these salutary and effectual provisions for the pro- 
tection of the right of property and the confidence 
they have insjjired have largely contributed to the 
material growth and prosperit}' of the United States. 
Whether they can be hereafter successfully evaded 
remains to be seen. 

But in pointing out the success which has thus far 
attended in America the sj-stem of judicial protection 
of constitutional rights, I am not to be understood 
as claiming for it a superiority over that which pre- 
vails in Great Britain. I do not assume to contrast 
the single century in which the American govern- 
ment has maintained successfully these great rights 
with the many centuries in which, with equal success, 
they have been maintained here. Nothing in the his- 
tory of the British government seems to indicate the 
necessity for additional protection in this direction. 
The liberty that has been preserved here so long may 
be reasonably expected to continue as well secured, 
under the same sj'stem, and by the same means. Polit- 
ical institutions, to be successful, must be the fruit of 
a natural growth, planted and nurtured by necessity. 

138 



LAW OF THE LAND 

They can never be arbitrarily imposed, or created full 
grown. They come with time, and adapt themselves 
to the soil upon which they arise. That a system has 
been fortunate in one country is but an indifferent 
argument in favor of an attempt to engraft it upon 
another. Transfusion of blood is a questionable ex- 
pedient, and the indigenous tree flourishes where the 
exotic perishes. 

I have referred to the American experiment in this 
feature of government rather as an illustration than 
as an example. It certainly has the advantage of 
removing from the sphere of political controversj- 
and from the action of popular caprice, and of placing 
under the uniform and permanent rules of jurispru- 
dence, the preservation of those fundamental personal 
rights which, under all political changes and chances, 
remain the same. American experience has thus 
far shown that the assumption of arbitrary power 
by the executive has not proved the danger to free 
institutions which theorists anticipated. The con- 
centration of po\\er has tended steadily to\^■ards the 
legislative branch of the government. It is from that 
branch, not from the executive, that protection has been 
principally found necessary. What might have oc- 
curred in that country in some periods of its short 
histor3^ if the constitutional restriction I have quoted 
had not existed, is only a subject of speculation. The 
frequency with which it has been invoked has demon- 
strated its importance. 

But no system, however elaborate, and no contriv- 
ance, however ingenious, can be finally effectual for 
the preservation of personal liberty without the con- 
stant assistance of an enlightened, healtlw, and 

139 



ORATIONS AND ESSAYS 

vigorous public sentiment. Law, however funda- 
mental, is but the reflex of public opinion, and in the 
long run in a free country must be maintained by 
that opinion or must perish. Constitutions, however 
guarded, cannot provide for their own immortality. 
The principles of civil liberty had their origin in the 
convictions of mankind, and have been brought to 
perfection by the devotion of the race in which the}" 
started. Under them the Anglo-Saxon people has 
become what it is, and by that people they have been 
made what they are. It is a hackneyed saying, but 
hacknej'ed because it is constantly true, that "eternal 
vigilance is the price of liberty." But vigilance, to be 
of an}' avail, must be intelligent as well as active. 
From whom is it required? From whom is it to be 
reasonabl}' expected? Who are the true and natural 
guardians of the law of the land? Manifestly those 
who are best qualified to understand it, and best capa- 
ble of patriotic and disinterested conduct. It was the 
barons of England who obtained Magna Charta. It 
has been the best life of Great Britain that, from century 
to century, from generation to generation, in many 
a crisis, by many a victory, not less of peace than of 
war, has maintained inviolate its great principles. 
No demagogue, no self-seeker, no man who "follows 
for a reward," has ever struck an effectual blow for 
liberty or has advanced the cause of human freedom 
a single step. The name of liberty is always in the 
mouths of such men, but they are its enemies, not its 
friends. They have retarded and disgraced it, but 
they have never done it any good. They are only 
camp followers, not soldiers, in the great march, des- 
tined, we hope, to overcome the world. Liberty, every- 

140 



LAW OF THE LAND 

where and always, has been maintained by the best 
class of its subjects. I use the term in no conventional 
sense. I understand the best class to be that which 
is composed of the best people. They may be found 
in the peerage; they may rise from humble life; their 
distinction is in qualit}', not in rank. It was the best 
class of Americans who took up the .e;reat quarrel on 
the far side of the Atlantic, carried through the Amer- 
ican Revolution, ordained and set fast the Constitution 
of the United States, and have upheld it ever since. 
It is in that class everywhere, in all countries, under 
all free systems of government, that the law of the land, 
which is liberty, must find its defenders. Not only 
against its enemies, but against being wounded in 
the house of its friends. Friends too ignorant some- 
times to perceive that a blow aimed at the head is equally 
a blow at the heart; that liberty is equality of rights, 
wliich no man is too liigh and no man too low to share 
in ; and that when that equality is invaded, from what- 
ever specious motive, or iq^on whatever promise of 
temporary advantage, liberty comes to an end ; and the 
old story of the strong against the weak, of which 
the world was so long weary, begins to be rehearsed 
again. 

For the maintenance of ancient and honest con- 
stitutional principles there is necessarj^ the attain- 
ment by intelligent and thoughtful men of a clear 
comprehension of the real nature, extent, and value 
of those principles. A comprehension capable of pen- 
etrating all the forms of sophistry and of subterfuge 
under which thej- are assailed, and all the plausible 
excuses by which the movement is concealed. Where 
there is one man who is willing to lead such an attack 

141 



ORATIONS AND ESSAYS 

there are ten who are unable to perceive that it is tak- 
ing place. 

A true understanding of the scope of constitutional 
law excludes it altogether from the field of political 
contention. There alwaj^s will be, and there alwaj's 
should be, political parties in a free country. There 
will never fail to be found room enough for a wide 
and sincere difference of opinion on the questions 
arising between them. But the law of the land is not 
the property of a party, nor the just subject of party 
dispute. All [larties meet on it and start from it as a 
common ground, and all are equallj- interested in its 
preservation. What free government should do in t he- 
various exigencies and emergencies of the national 
life is often a grave question. Whether free govern- 
ment shall continue to exist, can never be a question 
in the British or American mind. 

Nothing likely to occur at this day in any such 
government is so much to be dreaded, and so necessary 
to be resisted, as movements like those I have referred 
to, towards the organization of parties upon the lines 
of personal condition and the marshalling of one 
class to make war upon another. Political parties 
have been hitherto composed of all classes. Divisions 
have been upon the lines of opinion, and not upon those 
of social distinction. It is only recently that these 
movements have been seriously set on foot in various 
directions, and especially in America. If started in 
one free country, they endanger all. I have tried to 
l)oint out how dangerous to free government such a 
warfare must be, if allowed to go on to its legitimate 
conclusion. It is not merely the fortune of the con- 
flict that is to be feared, it is the conflict itself. It is 

142 



LAW OF THE LAND 

the shortest and most direct road to the resumption of 
the reign of arbitrary power. Tlie man who inau- 
gurates or encourages such a warfare is a greater, 
because a more efficient, enemy to Hberty than if he 
attempted to set up the worst form of despotism with 
which humanit_v was ever afflicted. 

ft needs to be brought liome clearly to those to whom 
ignorance and distress make such p>roposals attractive 
how cruel is the wrong to themselves that the success 
of them would bring to pass. How inevitablj' they 
must be the sufferers, when the hands of one class are 
thus turned against another, and what should be a 
community of interest is divided against itself. How 
certainl}^ such schemes paralyze the industries and 
business upon which all self-supporting men depend. 
They are capable of understanding this, if it is set 
before them in the right way. 

But the adjuration against a conflict of classes does 
not address itself, as too many seem to suppose, to the 
less fortunate class alone. It appeals to them un- 
doubtedly; but it appeals with greater force to the 
higher and better educated order in society. To avert 
an impending war, concessions from both sides are 
generally necessary. But they come, in the first in- 
stance, with a better grace and a stronger force from 
the side that can best afford them. It is easier some- 
times to disarm the demagogue by mitigating the 
grievances that make up his material than it is to 
refute him before the audiences where he has sway. 
The common law has its letter as well as its spirit. 
The one gives, as we have seen, an absolute protection 
to absolute rights. The other teaches that such pro- 
tection is a weapon of defence, not of aggression, most 

143 



ORATIONS AND ESSAYS 

effective when used with forbearance and moderation. 
It is not alwaj's necessary or wise to push even just 
claims to their extremity. 

The gradual but steady improvement of the general 
mass of mankind in intelligence, in self-respect, in 
social refinements, and in the capacity to enjoy them, 
is the natural outgrowth of civil liberty and of that law 
of the land which starts from the recognition of equal 
rights. It follows in the footsteps of free government 
wherever they go. .Its tendency must be accepted as 
one of the great forces of the age, and at the same 
time one of the most signal blessings to mankind 
that freedom has conferred. It is not for us to say how 
much may come of it hereafter. It is but natural 
that with this elevation of the humbler order should 
come a desire, not always well directed, but with which 
a right mind can never fail to symi)atliize, for better 
l)rivileges and surroundings, more advantageous con- 
ditions, and a better chance in the race of life. It is 
but just, as well as politic, that this desire should be 
met and assisted in all reasonable wa^'s ; and it is for 
the best interests of humanity that it should be. 

Doubtless something maj' be done towards such a 
progress by enactments, considerate and thoughtful 
— not shooting arrows into the sk}', to fall we know 
not where. But far more can be effected, as it appears 
to me, b\- the cultivation of that general spirit of con- 
ciliation, of kindness, and of fraternity which unites 
all honest men, of whatever class, in the bonds of a 
common symjiathy and a common hope. The right 
hand of fellowshi]) is the best offering, after all, that 
man can make to his neighbor. 

This is not a topic I desire to enlarge upon ; few words 

144 



LAW OF THE LAND 

are sometimes better than many. Perliaps the very 
storms which are now spending their useless force 
in the wrong direction in so many quarters of the sky 
may yet be clearing the air for brighter weather. The 
counteracting elements that are at work may bring 
out of the conflict at last a renewed order, a happier 
peace, a juster conception of rights, a more considerate 
redress of wrongs. It is idle to expect Utopian results. 
The varying lot of humanity can never be equalized. 
The poor will be always with us. But perhaps, in the 
ripening fruits of that larger philanthrope', that broad- 
er and more generous brotherhood wliich, taking ac- 
count of human frailty and himian sorrow, shall try to 
lessen the inequalities of life by raising from below, 
not by pulling down from above, to obliterate in some 
measure those distinctions that do not mark a difference, 
and to strengthen the security of rights by diminisliing 
the temptation to attack them, there may yet be seen 
— I cannot believe it visionary to think so — not the least 
beneficent of the gracious harvests that have been 
generated upon the land, by the law of the land. 
K 



VII 
ADDRESS 

DELIVERED AT BOSTON, MASS., JUNE 29, 1889 
AT HARVARD UNIVERSITY, BEFORE THE 

PHI BETA KAPPA SOCIETY 



INTERNATIONAL RELATIONS 



I SHALL have the honor to ask your attention this 
mornings, without preface or exordium, to some thoughts 
upon the subject of international relations. What I 
have to say must be both general and discursive, but 
I hope may not be found altogether without the interest 
that arises from practical application. 

The branch of jurisprudence upon which the rights 
and intercourse that exist between civilized nations 
are based has been commonly called international 
law. I do not think a less accurate phrase has often 
gained acceptance among instructed minds. In this 
subject, as in so many others, inexact language is 
both the cause and the result of inexact ideas. The 
word law, employed in anj' juridical sense, implies two 
indispensable elements — a supreme authority b}' which 
its obligation is prescribed, and a paramount force 
by which obedience is exacted. A system of proposed 
human conduct that lacks either of these conditions 
may be just and desirable, but it cannot reach the 
dignity of law. It may appeal, as the precepts of 
morality do, to conscience, to reason, and to policy, 
but it must remain only persuasive in its requirements, 
and voluntary in its obligation. Such are the rules 
that regulate the intercourse of nations. 

149 



ORATIONS AND ESSAYS 

It does not appear to nie, tlierefore, that the world is 
much indebted to Jeremy Bentham (if it is particularly 
indebted to him for anything) for the invention of the 
term "international law." The older title, "law of 
nations," if it has a different meaning at all, as has 
sometimes been claimed, acquires it by being less 
accurate still. The term "international morality," 
which some writers have suggested, seems equall}- 
inadequate, because it expresses only the source in- 
stead of the comprehension of the system it attempts 
to define. I venture to suggest the term " international 
usage," not as beyond criticism, but as more nearly 
descriptive than any other I am able to proj)ose for 
this youngest and most rapidh^ developing chapter in 
the science of jurisjirudence. But whatever the name, 
perhaps you will pardon a few introductory words in 
respect to the foundation upon which the fabric rests 
and tlie nature of the superstructure that has been 
raised upon it. 

Much speculation has been lavished upon the sub- 
ject of the true origin and .sanction of international 
obligation, by many and celebrated writers, from 
Grotius down to the present time. Each has construct- 
ed his own theory, and has criticised with more or less 
success those who have gone before. It would be 
neither ])ossible nor interesting to attempt to review 
them here, or to i)oint out how many are the distinc- 
tions that have been laboriously constructed out of 
how few real differences. They seem to arise in great 
part from efforts at an artificial division of an in- 
separable whole ; from a widelj' variant understanding 
of the meaning of unnecessary terms; and from a 
confusion, which is often the bane of juridical writing, 

i.=;o 



INTERNATIONAL RELATIONS 

between the statement of a conclusion, and the history 
of the process out of which it has come to pass. The 
outcome of all the speculations on the subject, by all 
writers whose views are worthy of attention, may, 
I think, be fairly and clearly stated in a very few words. 

What has been called "international law" obtains 
its authority from the general assent, gradually ac- 
quired, of civilized mankind. It consists, first, in the 
application to the intercourse of nations of those prin- 
ciples of natural justice and morality which are in- 
herent in the human conscience; and, next, in a body 
of rules and customs, more or less conventional and 
arbitrary, designed to give effect to those principles 
which have grown up under the guidance of expe- 
rience until they have come to be regarded as estab- 
lished, and which are adopted and enforced, when they 
affect jural rights, by enlightened courts of justice. 
The system divides itself, therefore, as all bodies of 
law must which obtain supremacy among a free and 
intelligent people, into principles and rules. Princi- 
ples that are imchangeable and of perpetual duration ; 
rules that are subject to constant modification and 
improvement for convenience sake, as the changeful 
exigencies of society and business demand. Prin- 
ciples which are accepted as law because they are 
right ; rules which are accepted as right because they 
have come to be law. 

Perhaps I should excuse myself for pausing on the 
way to the more practical suggestions I desire to make, 
to expend any words at all upon abstract propositions 
that do not .seem to need to be supported by argvunent. 
But it is worthy of remark, in jiassing, that only a few 
months ago the Earl of Lytton, a gentleman of much 

151 



ORATIONS AND ESSAYS 

literarj' as well as inherited distinction, and now Am- 
bassador from (Ircat Britain to France, in an address 
delivered upon his inauji:uration as Chancellor of the 
University of (!las>^o\v, announced, somewhat I think 
to the surprise of his audience, a very different theory 
of international conduct from that which I have stated, 
and brought to its supi)ort the subtlety of reasoning, 
the {j^race of style, and the fertility of illustration so 
easily at his command. The proposition ()f Lord 
Lytton is that the principles of morality have no con- 
trol in the intercourse of nations: that governments 
are ncitlier cai)ablc of nor amenable to ethical rules, 
and are to be guided only by considerations of ex- 
pediency, and that oblijj;ations based upon the natural 
rijL^hts of man (which he seems to reject altogether as a 
foundation of law) have no j)lace in determining the 
rules of international action. He attempts to find 
supjiort for this theory in the conduct of states, ex- 
hibited in so many instances in history, where right 
has been sacrificed to policy ; in the assertions that a 
government is an entity not capable of the i)ractice 
or sentiment of morality; that the rightfulness of war 
cannot be controverted, and that war is not reconciUible 
with morality ; and that law is the result of })0sitive 
authority, rather than of absolute right. 

These ])ro])ositions £ii)pear to me to be not only erro- 
neous in theory, but destructive to the peace of the 
world if they shoidd be generally adoi)ted. They result 
in the very stale of things it is the object of all law 
to prevent — the supremacy of i)hysical strength and 
the doctrine that might makes right. It seems im- 
possible tliat they should ever be established in the 
only waj' international rules can be — by the general 

152 



INTERNATIONAL RELATIONS 

assent of enlightened nations. Human society began 
in the right of the strongest. All the advancement 
it has ever made, all that Christianity or civilization 
has done for it, have been in the opposite direction. 
The whole fabric of international relations has grown 
up from that barbarous time when the foreigner cast 
upon the shore became a slave atid his property plun- 
der, when prisoners of war were put to dcatli or sold into 
.slavery, and when piracy was held to be meritorious, 
by the gradual as.sertion of tliC princijjles of moral 
justice, not only as the highest duty, but as the plainest 
and most necessary policy of nations. Is it not rather 
late in the history of tiie world to propose to return, in 
Ihe dealings of one country willi another, to the pre- 
dominance of the strongest, dictated by self-interest, 
and exempt from the control of national con.science? 

That history discloses in the conduct of nations 
much disregard of justice is true enough, but that 
does not diminish its obligation. As well might it 
be argued against the enforcement of the criminal 
law that crime has always been common. It is not 
the innocence of mankind from which that law has 
derived its origin, but the wrong it seeks to jirevent. 
It is in the steady diminution of indefensible national 
conduct which has marked the })rogress of better prin- 
cii)les liiat (heir best .sanction is found. It is true 
afso that states are not men, and are not, tiierefore, 
subject to all the moral duties that attach to personal 
life; but as aggregates of men they are not the less 
moral persons, and amenable to all the ethical prin- 
cii)les which bear upon national conduct. The re- 
quirements of morality are limited, with governments 
as with individuals, by the relations in which they 

153 



OKATIONS AND ESSAYS 

hap{)en to stand, and the duties of which they are 
thereby made capable. That war is sometimes jus- 
tifiable, and even necessar}^ cannot be denied, but in a 
proper case it is perfectly consistent with the principles 
of justice, and the requirements of sound morality. 
A government must take into its own hands not only 
self-defence but self-assertion, the redress as well as 
the prevention of injuries, because there is not, as in 
the case of the citizen, a higher or common authority 
to ai)i)eal to. Moralitj' would justify the same course 
by the individual, if society was unable to provide a 
legal remed}' for the invasion of civil rights. It is 
only because such redress exists and is maintained for 
the preservation of tlie public peace that a man is 
f)recluded from regaining by force the propertj" which 
has been wrongfully taken from him, abating by 
the strong hand the intolerable nuisance, and enforcing 
in like manner the fulfilment of just contracts and the 
protection of proper relations. 

In short, the difference between the moral rights 
and duties of nations and those of individuals is only 
in degree, and not in kind. It may be declared as the 
fundamental principle in all law that finds assent and 
support among the race to which we belong that it is 
based upon and exists for the principal purpose of 
applying the acknowledged principles of moral justice, 
so far as through general rules and established methods 
of procedure they can be made practically effectual, 
to the course of personal and national conduct. It is 
upon this foundation alone that what has the force 
of law can rest. And no man ever yet obtained a clear 
idea of it who attempted to deduce its sanction from 
the maze of metaphysical speculation, or who failed 

154 



INTERNATIONAL RELATIONS 

to comprehend that law among a free people must have 
something else to stand upon besides positive authority', 
and must be inspired b}' a controlling and animating 
spirit, that has svva}' over the reason and the con- 
science of men. The days of arbitrarj' power in state, 
in church, or in rulers have passed away, so far as 
we are concerned, to be seen no more. 

The rules of international usage form no exception 
to this proposition. They have derived their great- 
est assistance from those coimtries where the free com- 
mon law prevails They have constantly approached 
in their growth and development the precepts of sound 
moralit3^ Conceptions of natural justice have them- 
selves been greatty advanced, and international justice 
has nearly kejit j)ace with them. Almost the single 
conspicuous blot now left on the pages of international 
usage is found in the rule that subjects private property 
at sea, not contraband, to capture by an enemy in time 
of war. That remains an anomaly inconsistent with 
modern principles. It was the object of the Declara- 
tion of Paris to put an end to it. And though that 
attempt failed to obtain the fidl concurrence of mari- 
time nations, its success was only postponed, not lost. 
Enlightened public sentiment must idtimately insure 
it. It is nmch to be regretted that the failure of the 
proposal was owing to the refusal of our own govern- 
ment to assent to it. 

But it is less with abstract principles that I care to 
deal to-day than with that immediate view of the 
subject of international relations which belongs to 
our own country and our own time. During almost 
all the first century of the independent historj" of 

15.S 



ORATIONS AND ESSAYS 

America these relations have been of only occasional 
and liinited importance. Far remote from the theatre 
of European diplomacy, with no invasion to fear, no 
balance of power to consider, no monarchical intrigues 
to be drawn into, and few foreign interests to protect, 
it has been at rare intervals that we have had much 
to do with other countries, except for the interchange 
of courtesies, the i)romotion of trade, or the gratifica- 
tion of curiosity. We have had nothing to fear and 
little to gain from tliem, and our country has become 
the unlimited asylum for the overflow of their people, 
to such an extent that we are in danger of losing our 
own nationalit3^ 

But those halcyon days of international independ- 
ence have now gone by. A great change has come 
over the face of the world, and over our own situation. 
We have joined the Atlantic to the Pacific. Our popu- 
lation, our industries, our interests, our intercourse 
with the outside world have enormously increased. 
Steam-power, the telegraph, invention, competition, 
and the restless enterprise of the age have brought 
foreign countries to our door, and have carried us to 
theirs. Our people, mth tireless and irrepressible 
footstep, overspread the world, and create everywhere 
new relations, new engagements, and new enterprises. 
Within a very short time we have been drawn into the 
discussion of grave and important questions, involving 
considerable and fast-growing interests: with Great 
Britain, touching the fisheries of Canada, the seal 
catching of the Behring Sea, the vague and undeter- 
mined boundaries of Alaska ; with Germany, concern- 
ing the Samoan Islands; with France and Central 
America, about the Panama Canals ; with South Amer- 

156 



INTERNATIONAL RELATIONS 

ican governments, with Mexico, with Hayti, with 
China; and we have become charged with the pro- 
tection of our citizens and their property in all known 
countries of the earth. Questions of this sort are 
usually difficult and delicate. To know precisely 
what our rights are is not always easy ; to maintain 
them successfully is often harder. I allude to them 
only to illustrate my remark as to the growing impor- 
tance of the subject. 

It must be plain to the thoughtful observer that 
henceforth the variety, the intricacy, the magnitude 
of our foreign affairs, already considerable, must con- 
tinually increase. To understand and administer 
them correctly, to protect the rights involved, to kee[) 
the national honor untarnished, and at the same time to 
avoid the embarrassment and injury of strained and 
interrupted relations, and the calamities of actual 
war, which, like disease and death, come usually when 
least expected, and may arise out of small immediate 
causes when the way has been prepared by mutual 
irritation and misunderstanding — this is to be in the 
future one of the largest, perhaps the very largest, 
of the functions of American government. 

The time has come when, as it appears to me, we 
need to have established a distinctive, definite, wise, 
firm, and, above all, a consistent American policy 
in international concerns. Not one that is taken up 
and laid down hap-hazard, or that shifts and veers 
about with the exigencies of politics, the changes of 
party, or the competence or incompetence of temporary 
officials. Changing hands so often as our govern- 
ment does, we can have nothing worthy the name 
of a foreign policy, nothing that will either be respected 

I.S7 



ORATIONS AND ESSAYS 

abroad or effectual for its purpose, unless by the es- 
tablishment of principles, of traditions, of modes of 
procedure such as shall stand the test of experience 
and the criticism of mankind, and that shall pass on 
rmimpaired from administration to administration, from 
party to party, the common property of all, the inher- 
itance of each from its predecessor. Tlie changes 
of party do not affect the construction of the Con- 
stitution. That goes on irrespective of politics, uni- 
form, consistent, permanent. It underlies all ques- 
tions of government, a common and unchangeable 
foundation. 

Such a policy, as I think wise and thoughtful men 
will agree, should have for its basis the opposite 
of the theory set forth b}^ Lord Lytton. It should 
be founded in the highest morality' and justice. It 
should prefer the right to the expedient, or, rather 
should find in the right what is always in the end 
the expedient. It should be neither aggressive, nor 
offensive, nor hasty, but fair towards others, as well 
as just towards ourselves, invading no right that 
we would not ourselves surrender, establishing no 
precedent that we might afterwards wish to evade. 
It should be the policy, so far as consistent with 
the national honor, of peace, of conciliation, dig- 
nity, and forbearance, free from the cheaj) bragga- 
docio by which the applause of the mob is sometimes 
purchased, setting up no claims that we are not j)re- 
pared to maintain, making no demand that we do not 
expect to insist upon. It is the great and powerful 
nation that can best afford to be just, and more than 
just, to be generous. But, on the other hand, upon 
the line thus deliberately adopted, the stand should 

158 



INTERNATIONAL RELATIONS 

be absolutely firm and lun'ielding. Caution in taking 
up a position is the best preparation for firnmess in 
holding it. Any policy is better than a cowardly, 
a shifting, or a retreating one. Details, incidentals, 
disputed facts or figures, conflicting business interests, 
doubtful questions, these are the pro[)er subjects of a 
compromise and of mutual concession. But a prin- 
ciple, a point of honor, the just and clear right of a 
citizen, once asserted, should never be surrendered or 
receded from. 

It is idle to exjiect that a foreign policy of this kind, 
elevated, just, consistent, and resolute, can be main- 
tained by our country unless the subject can be with- 
drawn from the field of party politics. No govern- 
ment can successfully carry forward any international 
relations at all in matters of consequence without 
the general support of the public sentiment of its own 
people. The house that appears to be divided against 
itself will command no respect. The ground that is 
taken by one administration will be repudiated by 
the next. Foreign governments will find, in case of 
dispute, their strongest ally in the opposition that ours 
has to contend with, and will specidate, in dealing 
with us, upon the changes of party that may present 
to them an entirely different front. And, aside from 
the effect of such partisan warfare abroad, the E.xecu- 
tive cannot obtain at home that concurrence and a.s- 
sistance from co-ordinate departments that are neces- 
sary in order that any measures in the matter of foreign 
affairs should be effectual. 

We have seen, not long ago, an important treaty 
with a great nation, dealing with valuable interests 
and critical questions, and involving no political ele- 

159 



ORATIONS AND ESSAYS 

ment at all, suj)i)oited on one side and opposed on the 
other upon strict party lines, and passed upon in the 
United States Senate by a strict party vote. To its 
merits or demerits I do not allude. I do not assert either 
that it should have been ratified or that it should have 
been rejected. That question is foreign to my argu- 
ment, and altogether inapj^ropriate here. Nor do I deny 
that a difference of opinion in respect to it might fairly 
have existed. But if that difference arose out of the 
merits of the subject, how could it have so disclosed itself 
that no member of the one party was found to approve, 
and no member of the other to condenui? It is that 
spectacle, and not the particular result, wliich is so 
damaging to us abroad. 

I cannot allude here to other instances, not a few, 
where our relations with other nations have been em- 
barrassed and hazarded b^- partisan interference at 
home, without seeming to introduce topics that I wish 
to avoid. If such a course becomes established, no 
government of either jiartj" can maintain or carry 
out any just or desirable foreign policy whatever, 
unless its majorities are so overwhelming as to render 
opposition imjiossible. That the contests of party 
must continue, is inevitable. They are the curse of 
free government, but are a part of the price of it. 
There is nothing in this world without alloy. Even 
the countenance of liberty is sad at the sight of 
what is done in her name. But there is field enough 
for this warfare in our domestic concerns. There is 
room enough and to spare for the politician, in the 
differences of opinion that are unavoidable upon 
public questions, and in the strife that is so easily 
stirred up among candidates. In questions between 

i6o 



INTERNATIONAL RELATIONS 

other nations and our own, in measures that involve, 
not the success of a party, but the interests and honor 
of the whole countrj^ we should present the same 
united front in the controversies of peace as in those of 
war, and give a generous support to the administra- 
tion, of whatever politics, that is charged for the time 
being with the support of the common cause. 

When a nation is involved in war, the question for 
the citizen is not whether the war might have been 
avoided, or whether it is being prosecuted to the best 
advantage, nor whether the administration of the 
day is of liis own political faith, but on wliich side of 
the conflict he proposes to be found. He would be 
justly branded as a traitor who desired to paralyze 
the efforts of Iris government in order that in the ruin 
of liis country's cause might be found the success of 
his party. It should not need the existence of hos- 
tilities to enlist the citizen in the just support of an 
Executive dealing with foreign countries in respect to 
international affairs. 

It is one of the most striking features of public life 
in Great Britain that, however earnest and bitter may 
be the warfare of parties, all sides vield to the govern- 
ment of the time a steadfast support in the manage- 
ment of foreign relations, as well in peace as in war. 
They offer to other countries no divided front. The 
opposition may criticise and condemn the policy of 
their political adversaries, but as against the other 
country, until they can overthrow them, they sustain 
them in all their measures, and place in their hands 
all necessary resources. It is this which has made 
England so strong in diplomacy as well as in arms. 
No foreign government is allowed to speculate upon 
L i6i 



ORATIONS AND ESSAYS 

the embarrassment of British power by foes in its own 
household. 

I am far from maintaining that all measures of a 
government towards other nations should receive a 
blind and unreasoning approval, or that they should 
cease to be the proper subject of criticism and attemjjted 
improvement. I do not say that an administration 
may not be overthrown for the very defects and failures 
of its foreign policy, its incompetence, its neglect, its 
blunders. That might well occur in the conduct of a 
war, and yet every citizen be bound to support, as 
against the enemy, the very operations he disapproves. 
All I contend for is that questions relating to external 
affairs should be judged on their own merits, and not 
upon party grounds; that a government should be 
sustained abroad until a better one can be put in its 
place ; and that it should be sustained in this particular 
at home till it is found to be in the wrong. We cannot 
afford to obtain part}^ advantages at the expense of 
just foreign relations. 

But for the maintenance of a more effectual foreign 
polic}', it is not enough that it should be just and well 
considered, and that we shoidd be united in support 
of it at home. We must likewise be known to be strong 
enough to enforce it. Nothing is more mistaken 
than the idea that we are always to hold our own among 
the nations of the earth, while human nature remains 
what it is, by the mere force of argument. Tliat dis- 
cussions of disj^uted questions should be able and 
skilful, that the resources of reason, the ties of friend- 
ship, the offices of courtesy, and the suggestions of 
mutual interest should be made the most of, and may 
often be sufficiently effective, is not to be questioned. 

162 



INTERNATIONAL RELATIONS 

But it is also true that they must sometimes fail if 
there is no other force behind them. It does not de- 
tract from the eiTect of an argiunent that he who makes 
it is in a situation to command attention as well as to 
invite it. Mere attorneyship was never yet a decisive 
power in international affairs. The nation which is 
only the petitioner for justice, with nothinc; to depend 
upon but logic and rhetoric, friendship and sentiment, 
may fare well enough in small matters, but will be 
likely to go to the wall in great ones. It is not only 
hmniliating, but disastrous, when the state that 
marches up the hill has nothing for it but to march 
down again amid the derision of the world. 

It is true, as has been observed, that all nations 
profess to be guided by the principles of justice, and 
that what they accept as international law has these 
principles for its foundation. No government admits 
anj^ other rule of action, but they differ widel}^ under 
the stimulus of self-interest and the pressure of popular 
feeling, as to the application of it. Most people pro- 
fess to be and mean to he law-abiding, yet without 
courts of justice society could not go on. And of what 
avail would be courts of justice without a sheriff to 
execute their decrees if resisted? What makes law a 
controlling force in civilized society is not so much 
the justice of its conclusions as the consciousness 
that the power of government stands behind them. 

It is the nation which, however conciliatory and easy 
to be entreated, and however adverse to hostilities, is 
felt, nevertheless, to hold in reserve an ultimate power 
it is not safe to provoke, which commands respect. 
The force of argument is immensely strengthened 
when it is sustained by a background of artillery. 

163 



ORATIONS AND ESSAYS 

That countrj' is most likely to enjoj' the blessings of 
peace which is in a condition to be most formidable 
in war. National strength means strength in the 
right quarter and the right way. It does not consist 
in power where it is not wanted. The science of war 
is said to depend upon bringing to bear a predominant 
force at the vital point, at the critical time. Of the 
invincible power of our country upon its own soil there 
can be no question. We have shown that we can 
gather a great army as rapidlj^ as the snow comes 
on the wings of the winter wind, and disperse it again 
like the melting of the same snow in the spring. At 
home we may safely def}^ the world in arms, but by 
land we shall never be attacked. If we are ever so 
unfortimate as to be involved in war with any country 
great enough to go by the sea, the issue must be de- 
termined upon the sea, and not upon the shore. In 
this view what is our situation? Every seaport we 
have is absolutelv at the mercy of any maritime nation 
in the world. We have no naval force that can cope 
with that of any such nation, or that could stand up 
at all before the great war ships and powerful artillery 
of the present time. We have no fortifications what- 
ever, nor a single modern gun in position upon our 
coast, that would be effectual in defence against such 
an attack. Were we to assemble a million of men to 
defend New York or Boston against it, they would be 
powerless, and only available for slaughter. These 
are humiliating facts, not adapted to festive occasions, 
but they should be looked in the face. All the world 
knows them, and takes them into account. It is onty 
against countries that have no navy that we are capable 
even of self-defence. When the point of controversy 

164 



INTERNATIONAL RELATIONS 

is in some other part of the world than ours, we are 
unable to place there any force that could successfully 
encounter that of a sea-going nation. For the protec- 
tion of any distant interest, or the immediate redress 
of an injury or outrage, we are powerless. In short, 
we are the only nation pretending to be of the first 
class that is incapable either of offence or defence, 
except that sort of defence that will never be challenged 
or called into play. 

There is still another view in which a naval force is 
a very important factor in foreign relations besides 
the strict requirements of offence and defence. There 
is a phrase that figures largely in the wake of a war, 
and when tenns of peace have to be patched up — the 
"statu quo ante helium." That is a condition often 
as important in the outset of a controversy as at the 
end of it. It may be prospective as well as retro- 
spective. The presence of a competent force at the 
right point at the right moment sometimes prevents 
transactions that prove most troublesome after they 
have occurred. It serves to keep the peace that, once 
broken, is hard to mend. It is the j^revention that is 
better than cure. Possession is said to be nine points 
of the law. That is as true between nations as be- 
tween individuals. A wrong may be quickly set 
right on the spot, in a way that is likely to be acquiesced 
in; and verj^ material advantage in subsequent dis- 
cussion may result from a proper adjustment of the 
statu quo beforehand. More than once in recent times 
prolonged and heated discussion could have been 
avoided by our own government if it had possessed a 
force which, quietly and seasonably interposed, would 
have prevented wrongs, for which, once committed, 

165 



ORATIONS AND ESSAYS 

it is not easy to obtain peaceable redress. And that 
is especially true in a case where diplomatic relations 
are with one country, and actual transactions with a 
dependency over which it has little control. 

It may be thought that I am diverging from the sub- 
ject I have been dealing with when I enter upon these 
considerations. But no remark I have made is more 
germane to my topic. Naval strength has become 
at this day the right arm of diplomacy, and the most 
important element in large and critical foreign rela- 
tions. Moral power is an excellent thing. It is best 
to be right, and in the long run it is necessary to 
be right, however powerful a nation may be. But 
there are times when it is of small avail to be right if 
we are likewise impotent. A right arm without brains 
or conscience is never a desirable force, but brains 
and conscience without a right arm are not always 
an effectual one. I would propose, therefore, as one of 
the first steps towards such an international attitude 
as it seems to me our country should assume, and, 
having assumed maintain, that a naval force should 
be created that should leave us nothing to fear from 
collision with any other naval power in the world. 
For this no country has such facilities — an overflow- 
ing treasury, a sea-coast extensive enough to afford 
shi{>yards for the world, inventive and mechanical 
genius and industry unsurpassed, a highly educated 
and well-selected body of naval officers, a people to 
whom seafaring is the gift of nature more than to any 
other {)eople except those of their own. race. Better 
to expend the whole surplus in the treasury, which is 
demoralizing the country and debauching its politics; 
better to create a ship-yard in every port, and to employ 

i66 



INTERNATIONAL RELATIONS 

thousands of men in building ships and thousands 
more in saihng them, until our ancient prestige on the 
ocean is restored, than to remain in the condition 
where our only means of asserting disputed rights, or 
defending ourselves against attack, is the soft answer 
that turneth away wrath. 

Of course, it is easy enough to misunderstand these 
suggestions. Nothing in the world is easier than to 
misunderstand, except to misrepresent. The one is 
natural to the dull man, the other is the most con- 
venient weapon of the dishonest one. It is easy to say 
that a proi)osal to put a nation in a condition for self- 
defence is to advocate a career of war and bloodshed 
and aggression. But saying so does not make it so. 
That man is a fool, if there be such a man at the pres- 
ent day, who does not know that war is the greatest 
of calamities and sorrows, and the most destructive 
to all the best interests of humanity. To avoid the 
possibility of war is the first object of all foreign inter- 
course. To cultivate with other nations the free com- 
merce, the amenities and the courtesies that are the 
fruits of peace, is the second. The views of mankind 
have undergone a vast change within the last century 
on the subject of war. It is no longer the game of 
kings, or of statesmen, or of ambitious soldiers. It is 
universally deprecated and dreaded among all civilized 
men. 

With the present intercourse among nations, a 
mere paper war of three months' duration, between 
two great powers, even if not a shot shoidd be ultimate- 
ly fired, would work an incalculable injury in the in- 
terruption of business and travel, the derangement 
of finance, the disturbance of relations, the enormous 

167 



ORATIONS AND ESSAYS 

expense of preparation, and the general alarm and 
excitement. War is, therefore, more and more to be 
feared, and will be more and more anxiously avoided. 
And yet it can never cease from off the earth. It will 
still and always remain the last resort of nations, and 
the last resort must sometimes be appealed to. The 
vast armaments still kept up by all the great European 
countries show the general consciousness of this. 
They are maintained, not for the purpose of making 
war, but of avoiding it. It is an armed neutrality that 
now pervades Europe. 

There are humanitarians of excellent motives who 
seem to believe that war can be put an end to forever 
by the universal agreement of mankind to substitute 
arbitration in its stead. Theirs is a harmless effort, 
but not a promising one. Arbitration is one of the 
most plausible words in the English language. But 
it means one thing to those who have had much to do 
with it, and quite another to those who have not. The 
former usually ascertain that it signifies the trial and 
determination of controversies by those who have 
no acquaintance with that difficult business. Great 
as are the evils of litigation, arbitration has never 
had any perceptible effect in reducing it. Men are 
generally more ready to prescribe it for others than to 
accept it themselves. Nevertheless, imperfect remedy 
as it is, it will continue to be sometimes employed in a 
certain class of international questions, especially the 
adjustment of money claims, public and private. In 
such cases almost any disposition that is honorable 
is better than a continuance of the dispute. But the 
idea that it can ever be made the ultimate resort of 
nations in those more important quarrels that involve 

i68 



INTERNATIONAL RELATIONS 

questions of principle or of honor, or that have stirred 
the blood and moved the passions of men, appears to 
me altogether chimerical. Could the battle of Waterloo 
have been avoided bj' an arbitration between Great 
Britain and Napoleon? Or would the world have been 
the better if that great quarrel had been so patched up? 
Would the American South have consented at the out- 
set of the civil war to refer the question of the indejien- 
dence they claimed and expected to achieve — would 
the North have submitted the question whether we had a 
government not dissoluble by rebellion, to the arbitra- 
ment of some European potentate or political philoso- 
pher, to be argued by counsel, in the French language, 
at some watering-place on the Continent? States 
can never be brought to agree beforehand, in respect 
to prospective controversies that have not arisen and 
may never arise, to bind themselves to this method of 
adjustment. But were such a compact ever so solemnly 
made, it would never be carried out in the white heat 
which, when the occasion comes, melts into one cur- 
rent all the ingredients of national emotion. There is 
hardly a policy of insurance that does not contain a 
provision that, in case of dispute, it shall be submitted 
to arbitration. But when the loss has occurred, and a 
quarrel has arisen, and the parties are stirred by a 
sense of fancied wrong, who on either side ever pays 
attention to this solemn and formal agreement? Wars 
do not take place like murders, by malice aforethought. 
They are not arranged for beforehand, like matches at 
chess. They come when combustible materials have 
been allowed to accumulate, and irritated feeling to 
grow; when a match carelessly dropped, perhaps 
by an insignificant hand, at an unexpected moment, 

169 



ORATIONS AND ESSAYS 

sets a flame that the high wind of pubHc sentiment 
drives into a conflagration. 

I have said, and I repeat it, that the pohcy of the 
United States should be that of an enHghtened and 
Cliristian nation, deprecating war, and devoted to 
the arts, the industries, the humanities of peace, and 
ready to make sacrifices as well as efforts to preserve 
it. But the best way to accomplish that object in the 
different future now opening before us still remains 
to be thoughtfully considered, in the light of the his- 
tory and the experience that will continue to repeat 
themselves, from time to time, as long as the world 
stands. 

Still another topic of minor, and A-et of no insignif- 
icant, importance remains to be touched ujion, in 
dealing with the foreign relations of the United States. 
I refer to the position of our Ministers abroad. Of the 
personal qualifications necessary in those places I 
need not speak. They are sufficiently understood, 
and are not likely to be overlooked. But it is not 
enough to send the right man to the right place. He 
should be put in the position, in the country to which 
he is accredited, that belongs to and befits the repre- 
sentative of Iris government. And as this is a requisite 
not so generally understood, I may be excused for some 
observations in respect to it which personal observation 
has suggested. It is time this branch of the subject 
was brought to ]niblic attention. 

Of the three grades in diplomatic rank, which the 
usage of nations has established — Ambassadors, Min- 
isters Plenijiotentiary, and Ahnisters Resident — the 
first is universally regarded as the proper represent- 

170 



INTERNATIONAL RELATIONS 

ative from one first-class power to another. Min- 
isters, plenipotentiar}- and resident, are sent between 
first-class and second-class powers, and by the latter 
between themselves. The sending and reception of an 
Ambassador is the mutual recognition between two 
governments that both are entitled to be regarded as 
of the first rank. And as a nation invariably sends 
to another a representative of the same rank as the 
one who is sent in return, the accrediting of Ministers 
signifies a mutual understanding that one or both of 
the countries is not of the first rank. Wliile this rule 
is conventional, it is at the .same time, with the single 
exception I shall mention, universally observed. That 
exception is found in the diplomatic intercourse of the 
United States with nations of the first class, to wliich 
we should send, and from which we should receive, 
representatives of the rank of Ambassador. To coun- 
tries not ranked as of the first class we send and re- 
ceive Ministers of the same grade as are interchanged 
with those countries by other powers. It is only with 
nations of the first class that we send and receive 
Ministers of the second rank, the same that are sent to 
those countries by second-class powers. The result 
is that, in the smaller coiuitries, the United States 
government has the representative that properly be- 
longs to it, by the custom of nations, and the estab- 
lished rules of international usage. But in the princijjal 
countries it has the representative that does not be- 
long to it, and stands in that respect on the footing of 
a second or third-class power. Let me inquire now, 
very briefly, first, whether there is any good reason 
for this distinction, and, next, whether there is any 
importance to it. 

171 



ORATIONS AND ESSAYS 

It has been sometimes said that the title of an Am- 
bassador indicates the representative of a monarchical 
or imperial power, and is therefore unsuited to that of 
a republic. It is true that an Ambassador formerly 
represented a kinj:i:, because at that time there v\as 
no form of government except the monarclxical that 
had diplomatic relations. And the same was equally 
true of any other dijjlomatic representative. In the 
present day an Ambassador represents the govern- 
ment from which he is sent, whatever the form, as any 
other Minister does, and this title no more indicates 
that his government is monarchical than does that 
of a Minister Plenipotentiary. Thus, France, imder 
a republican government, is represented in all first- 
class countries except our own by an Ambassador, 
and would send an Ambassador to us if we sent t>ne 
to Paris. 

In the Constitution of the United States, drawn 
up with critical care at a time when the utmost jeal- 
ousy of all monarchical forms and institutions existed, 
special provision is made for the appointment of Am- 
bassadors, and for the rights and privileges of Am- 
bassadors sent to this covmtry. There certainly would 
not seem to be any special a]i{)earance of republican 
simplicity in the absurd title we employ, "Envoy 
Extraordinary and Minister Plenipotentiary of the 
United States of America," in preference to the sim- 
ple phrase, "The American Ambassador," especially 
as the only difference in meaning is the one I have 
stated. 

It has been said also that, if we send and, therefore, 
receive Ambassadors, some ceremonial will be requi- 
site in our treatment of them, not consonant with 

172 



INTERNATIONAL RELATIONS 

our simple habits of life. This idea is equally without 
foundation. An Ambassador, so far as we are con- 
cerned, would be received and treated in all respects 
precisely as a Minister from the same countr}' now is, 
except that between him and his colleagues of lower 
rank in the Dii)lomatic Corps he would be entitled to 
a precedence which he does not now obtain. 

But is there to the American government any ini' 
portance in observing this distinction? That it is the 
vmiversal custom of the diplomatic world, which it 
can do no harm to observe, and which we therefore 
ought to observe if we choose to have relations of that 
sort, should be a sufficient answer to this question. 
It is time enough to refuse to be bound in diplomatic 
intercourse by the established rules that all other 
nations recognize when some good reason can be 
stated to the contrary. Such rules are, of course, in a 
measure conventional, but so are most of the usages 
of human society. Without rules of that kind, resting 
in general concurrence, there could be no such tiling as 
civilized life. To send a representative into the circle 
of international representatives is altogether a volun- 
tary' act. His reception, if he is sent, stands onh' 
upon the comitj^ of nations and the usages of diplo- 
mac3'. He is only the guest of the country to which he 
goes. If we are unwilling to conform to those usages, 
we should not take part in the intercourse wliich they 
regulate, nor accept the hospitality and the courtesj- 
which are offered upon the implied condition of their 
observance. The government to which our Minister 
goes has to regard not only his relation to itself, but 
his and its own relation to their other guests, the rep- 
resentatives of other nations equally to be considered, 

173 



ORATIONS AND ESSAYS 

and should not be embarrassed in his reception bj^ a 
needless refusal to stand on the same groimd they 
occup3'. 

A recent writer in a leading English periodical 
commences an article with tliis inquiry: "Do the 
Americans know how much they lose by disregarding 
the established usages of diplomatic intercourse?" I 
would supplement that question by another : " Does 
any good reason exist why Americans should expose 
themselves to such an observation? Is there any- 
thing distinctively American, or distinctively cred- 
itable or useful, in neglecting even the lesser propri- 
eties recognized among civilized nations in their deal- 
ings with each other?" 

But the observance of this distinction has reasons 
much more important to ourselves ihan to others. 
The rules of precedence among diplomatic represent- 
atives, dependent ujjon their rank, are too firmly 
established to be disregarded. No nation can or does 
disregard them, or claim that they should be disre- 
garded in its favor. These rules accord to the Am- 
bassador in foreign countries, where ceremonials are 
strictly observed, a i)recedence over representatives 
of a second grade, who presumabh' represent states 
of a lower ranli, that is manifested on many occasions 
and in many ways, and which gives to the Ambassador 
great advantages over the Minister. In some capitals 
tliis precedence is a .serious embarrassment to the latter 
in the transaction of business. And in all the great 
capitals it places the representative of this country, 
on many public occasions, in a ])osition of inferiority 
that is humiliating to every American who witnesses it. 
The representatives of other nations which claim to be 

174 



INTERNATIONAL RELATIONS 

of the first class are accorded the place and recogni- 
tion that befits their countries. The American alone is 
consigned to a lower place, among the general crowd of 
inferior ofGcials from the remote quarters of the world. 
If such treatment were the fault of the government 
to which he is sent, no Minister with the least regard 
for the respect due his country would submit to it, 
nor would any American be willing that his represent- 
ative should remain a single day where he is exposed 
to it. But it is our own act that renders it impossible 
for these governtnents to accord to us the position and 
the respect to which we are entitled, and which with a 
proper rank we should promptly receive. They urge 
us to obviate this embarrassment to them and to us. 
Yet we insist upon placing ourselves in the society of 
nations where we sliould not allow any other country 
to place us, on the footing of second-class guests, 
though better entitled to be of the first class than 
most of tho.se who compo.se it. 

It is true that these are only observances of cour- 
tesy and ceremony. But courtesy and ceremonj^ con- 
stitute those external marks of respect to the govern- 
ment and the nation that are of the essence of diplo- 
matic intercourse, especially in countries where they are 
usual and significant, and where the omission of them 
becomes a disparagement. The national flag is but 
a piece of bmiting — a conventional emblem; yet we 
do not allow it to be insulted or disregarded. And 
if it is to be carried in the procession of nations, we 
should not permit it to bring up the rear. 

It seems to be supposed by some people that the 
raising of a Minister to his proper rank is a matter 
that principally concerns him personalh^ and con- 

175 



ORATIONS AND ESSAYS 

tributes only to his own elevation. There can be no 
greater mistake. It is only in his representative ca- 
pacity that it is of the least importance. It is a ques- 
tion for his country, not for himself. It is not the color- 
sergeant who carries the flag that is harmed by the dis- 
paragement of it, but the nation of which he is but the 
servant. Personally, the Minister must stand upon 
his own qualities. They cannot be improved or eked 
out by additional rank, though the defects of them 
might be thereby made more conspicuous. 

Another urgent reason for placing the American 
representative abroad in his proper place is that, by 
thus enabling the principal nations to send us Am- 
bassadors in return, we obtain from them a much 
superior cla.ss of men. In most other countries, en- 
titled by their importance to send Ambassadors, there 
is a regular diplomatic profession. Ministers who 
show themselves fit for it are promoted to the higher 
grade, and will not afterwards serve in a lower one. 
The result is that we receive from those countries 
either young men who have not yet earned their pro- 
motion, or old ones who have shown themselves unfit 
for it. The cream and ability of the diplomatic ser- 
vice goes to other countries than ours, or is rapidly 
taken away from us by promotion. One of the ablest 
and most acceptable Ministers from Great Britain 
we ever had at Washington (Sir Edward Thornton) 
was promoted away from us by being sent to Turkey 
as Ambassador. He would gladly have remained in 
the United States, but could not do so without losing 
his promotion and encountering the discredit of being 
passed over. To send the present very competent 
British Minister (Sir Julian Pauncefote) to our govern- 

176 



INTERNATIONAL RELATIONS 

ment it was necessarj- to go outside the ranks of the 
diplomatic profession altogether. It is needless to 
say how important it is to our expanding foreign re- 
lations that we should have the best class of men 
sent to us from the principal countries of the world. 

The American representative in the great capitals 
of Europe should not only have his proper rank among 
his diplomatic colleagues, but he should be provided 
with an official residence becoming to the dignity of 
his country. Every other nation represented there has 
its Embassy or Legation for the home of its Minis- 
ter, and the tran.saction of its affairs; a residence, 
the recognized property of the nation, over which 
the flag flies, within which are protected the privileges 
and immunities that the comity of nations accords, 
the centre of its hospitalities, the resort of its people. 
Men may come and go, but the national home remains. 
The American Minister alone has no recognized official 
residence. He is here to-day and elsewhere to-morrow, 
lodged better or worse as his circinnstances allow. 
This is a condition disparaging to the dignitj^ and 
injurious to the interests of a great country. 

Your representative should likewise be provided 
with a sufficient pecuniary allowance to enable him to 
maintain with credit the position in which he is placed, 
and to return suitablj^ the hospitalities he cannot 
decline. It is notorious that the compensation of 
American Ministers at the principal capitals falls far 
short of their unavoidable expenditure. All other 
dii:)lomatists there are handsomely and even munifi- 
cently i^rovided for by their governments. It is a 
disgrace to a nation like ours that, in seeking for a 
man competent to represent it abroad, and to deal 
M 177 



ORATIONS AND ESSAYS 

witli its important and often critical affairs, the first 
question must necessarily be, "Is he rich enough to 
pay his own expenses?" I do not mean to say that 
the diplomatic service has come to be so nearly like the 
kingdom of Heaven that no rich man is to be thought 
fit for it. High Uving and high thinking are not 
necessarily incompatible, though American experience 
has been largely the other way. But upon what prin- 
ciple, and, above all, upon what republican pruiciple, 
should all but the rich be excluded from this branch 
of the public service, or else the service be allowed to 
suffer for want of private wealth to support it? Is 
there any surer way to establish the plutocracy that it 
should be the first object of republican government 
to avoid than to provide for high offices in so niggard- 
ly and parsimonious a manner that they become of 
necessity the exclusive i)roperty of the rich, and are 
bought for a price? 

Of course, such posts should not become places for 
making money. A man should have a better motive 
than that in accepting them. Nor ought they to be 
occupied with an ostentation and display inconsistent 
with the habits and traditions of American life. But 
it is not necessarily American to be shabby. Our 
country should not appear at foreign capitals in forma 
pauperis. Its representative should be able to conform 
to the decent requirements of the society he is thrown 
into. His official ho.spitalities should not be niggardly ; 
they should be, and be understood to be, those of his 
country, and not of himself. Nor should they be 
splendid under one administration and parsimonious 
in the next. 

These things, it is easy enough to say, are only 

178 



INTERNATIONAL RELATIONS 

details. But details are the machinery through which 
all forces move. The greatest motor is powerless 
without them. He who neglects them achieves no 
results. A strong Minister, or a polished one, will in 
time be recognized for what he is worth, and will doubt- 
less surmount many difliculties and embarrassments. 
But whj' should they be unnecessarily thrown in his 
way by the coiuitry he is trying to serve, and which 
needs the best service he can render? What is worth 
doing at all is worth doing well, and doing in the right 
way. What needs to be done should be done well, or 
had better not be done at all. 

Perhaps, gentlemen, I have disappointed your ex- 
pectations, in the plain and homely thoughts I have 
set before you. Perhaps you have felt, in assembling 
for tliis annual festival around the altars of fine learn- 
ing you remember so fondly, and whence your course 
in life set out, that the day should be consecrated to 
the fair humanities, and the air of the old haunts made 
glorious with the color and fragrant with the perfume 
of the choice flowers of literature and philosoph3\ 

But to that high service I should not have been called. 
Less fortunate than .some of you, my path has not lain 
among the flower gardens nor in the enchanted groves 
of .scholastic life, but through the sun-browned fields, 
in the heat and burden of the daJ^ I have no garlands 
to offer you, but only the ripened grain — the common 
harvest — "whereof the mower filleth his hand, and he 
that bindeth up the sheaves his bosom." 

Even were I qualified to adorn this occasion, I 
should still have sought rather to improve it. I do 
not much esteem, and I venture to think you do not 

179 



ORATIONS AND ESSAYS 

much esteem, that culture which is expended upon 
the air and nourishes only its own reproduction; 
which regards the ebb and flow of actual life from 
a safe distance, with a jilacid smile and a dry eye. 
The name of your honorable society recalls the tra- 
ditions of Grecian literature — a literature that has 
survived its nation and the life of its language, and 
through which alone that language, though dead, yet 
speaks, and will always speak. And what is the very 
flower and fruit of all the teaching that has come down 
to us from that remote civilization, vanished, but still 
living in its example, whose story is thus imi)erishably 
written? Is it not that the truest and best-cultured 
life on earth is that which reaches out somehow, with 
a useful and self - forgetting touch, to those things 
which concern the safety, the honor, and the welfare 
of the country where it has its birth, and ought to find 
its home? 

You have often heard, upon days like this, adjurations 
to tlie American scholar — abstract and theoretical for 
the most part — touching his duty towards domestic 
politics. That is a subject upon which I do not enter. 
Perhaps you may think its field unattractive and 
unprofitable. Perhaps you have come to believe that 
it must be given over altogether to the professional 
politician, and be cultivated entirely by the machinery 
he has invented. If that be so, alas for the pity of it ! 
Alas for the pity of it ! 

But still remains to be dealt with, and must be dealt 
with, for better or for worse, the attitude of our country 
towards the outside world ; its place in the intercour.se 
and opinion of nations. Whether they are to be such 
as we are to blush for or to be proud of ; whether they 

1 80 



INTERNATIONAL RELATIONS 

are to make for jieace with honor or for huiiiihation 
and perpetual strife, are questions that do not belong 
to part3^ — are not to be wroiiglit into platforms, decided 
by majorities, or shouted over bj' stump orators. 

At home, the flag hangs idly from mauj- a staff, 
and serves to mark many a mean and ignoble thing. 
We often pass it bj' without regard. It is when it 
rises, solitary and brilliant, against some far-off foreign 
skj', that it touches the heart of the American wanderer 
with a new emotion, and a larger sense of all it stands 
for. It is then he "smiles to see its splendor fly." 
It is then he feels of how much account it is, that where- 
ever it is seen among the nations of the earth, where- 
ever it floats on any sea or shore, it should still remain, 
as Massachusetts has said before, " full high advanced, 
not a stripe erased, nor a single star obscured. " 

The views I have tried to jiresent address themselves 
with especial force to you and the class you belong 
to. They ajjpeal to the thoughtful men of America : 
those who do not traffic or haberdash in the public 
welfare; who value not merely their country's material 
prosperity, but its fame and example everywhere; 
who know that it is not all of national life to live or to 
grow, and that with governments, as with men, there 
are some deaths that are better than some lives. 

It is in your ranks that the covmtry must find those 
in whose hands this most delicate and difficult branch 
of its service shall be left. Your voices, your pens, 
your influence, your efforts, must set forth and main- 
tain the principles upon which it ought to be carried 
on. If you and such as you do not heed and care for 
them, they must be unheeded and uncared for, now 
and always. 

i8i 



VIII 
ADDRESS 

DELIVERED AT THE MANSION HOUSE, LONDON, JAN. 24, iS 
AT THE FAREWELL BANQUET TO 

EDWARD J. PHELPS 



FAREWELL TO ENGLAND 



My Lord Mayor, my Lords, and Gentle- 
men, — I am sure you will not be surprised to be told 
that the poor words at my command do not enable me 
to respond adequately to your most kind greeting, nor 
to the too-flattering words which have fallen from my 
friend the Lord Mayor, and from my distinguished 
friend the Lord Chancellor. But you will do me tlie 
justice to believe that my feelings are not the less sin- 
cere and hearty if I cannot put them into language. 
I am under a very great obligation to your lordship, 
not merely for the honor of meeting this evening an 
assembly more distinguished, I apprehend, than it ap- 
pears to me has often assembled under one roof, but 
especially for the opportunity of meeting under such 
pleasant circiunstances so many of those to whom I 
have become so warmly attached, and from whom I 
am so sorry to part. It is rather a pleasant coincidence 
to me that about the first hospitality that was offered 
to me after my arrival in England came from my friend 
the Lord Mayor, who was at the time one of the Sheriffs 
of London. I hope it is no disparagement to my coun- 
trymen to say that, under existing circumstances, the 
fir.st place that I felt it my duty to visit was the Old 
Bailey Criminal Court. I had there the pleasure of 

185 



ORATIONS AND ESSAYS 

being entertained by my friend the Lord Mayor. And 
it hapijens also that it was in this room, almost four 
j^ears ago, at a dinner given to her Majesty's Judges 
by my friend Sir Robert Fowler, then Lord Mayor, 
whose genial face I see before rae, that I appeared for 
the first time on any public occasion in England, and 
addressed my first words to an English company. It 
seems to me a fortunate propriety that my last public 
words should be spoken under the same hospitable 
roof, the home of the chief magistrate of the City of 
London. Nor can I ever forget the cordial and gener- 
ous reception that was then accorded, not to myself 
personally, for I was altogether a stranger, but to the 
representative of my country. It struck what has 
proved the key-note of all my relations here. It indi- 
cated to me at the outset how warm and hearty was 
the feeling of Englishmen towards America. And it 
gave me to understand, what I was not slow to accept 
and believe, that I was accredited not merely from one 
government to the other, but from the people of America 
to the people of England — that the American Minis- 
ter was not expected to be merely a diplomatic func- 
tionary', shrouded in reticence and retirement, jealously 
watching over doubtful relations and carefully guard- 
ing against anticipated dangers, but that he was to 
be the guest of his kinsmen — one of themselves — the 
messenger of the sympathy and good-will, the mutual 
and warm regard and esteem, that bind together two 
great nations of the same race and make them one 
in all the fair humanities of life. The suggestion that 
met me at the threshold has not proved to be mistaken. 
The promise then held out has been generou.sly ful- 
filled. Ever since, and through all my intercourse 

i86 



FAREWELL TO ENGLAND 

here, I have received in all quarters, from all classes 
with whom I have come in contact, under all circum- 
stances and in all vicissitudes, a uniform and widely 
varied kindness far beyond what I had personally 
the least claim to. And I am ^lad of this public op- 
portunity to acknowledge it in the most emphatic 
manner. M3' relations with the successive govern- 
ments I have had to do with have been at all times 
most fortunate and agreeable. And, quite beyond 
those, I have been happy in feeling always that the 
English people had a claim upon the American Minister 
for all kind and friendlj' offices in his power, and upon 
his presence and voice on all occasions when they 
could be thought to further any good work. And so 
I have gone in and out among you these four years 
and have come to know you well. I have taken part 
in many gratifying public functions. I have been the 
guest at many homes ; and my heart has gone out with 
yours in memorable jubilee of that Sovereign Ladj^ 
whom all Englishmen love and all Americans honor. 
I have stood with j'ou by some unforgotten graves ; 
I have shared in many joys ; and I have tried as well 
as I could through it all, in my small way, to promote 
constantly a better understanding, a fuller and more 
accurate knowledge, a more genuine sympathy be- 
tween the people of the two countries. And this leads 
me to say a word on the natiu^e of these relations. 
The formal intercourse between the governments is 
most important to be maintained, and its value is not 
to be overlooked or disregarded. But the real sig- 
nificance of the attitude of nations depends in these 
days upon the feelings which the general intelligence 
of their inhabitants entertains towards one another. 

187 



ORATIONS AND ESSAYS 

The time is long past when kings or rulers can involve 
their nations in hostilities to gratify their own ambi- 
tion or caprice. There can be no war nowadays be- 
tween civilized nations, nor any peace that is not hol- 
low and delusive, unless sustained and backed up by 
the sentiment of the people who are parties to it. Be- 
fore nations can quarrel, their inhabitants must first 
become hostile. Then a cause for quarrel is not far to 
seek. The men of our race are not likely to become 
hostile until they begin to misunderstand each other. 
There are no dragons' teeth so prolific as mutual mis- 
understanding. It is in the great and constantly 
increasing intercourse between England and Amer- 
ica, in its reciprocities and its amenities, that the se- 
curity against misunderstanding must be found. 
While that continues they cannot be otherwise than 
friendly. Unlucky incidents may sometimes happen; 
interests may conflict ; mistakes may be made on one 
side or on the other ; and sharp words may occasionally 
be spoken by unguarded or ignorant tongues. The 
man who makes no mistakes does not usually make 
anything. The nation that comes to be without fault 
will have reached the millennium and will have little 
further concern with the storm -swept geography of 
tliis imperfect world. But these tilings are all ephem- 
eral ; they do not touch the great heart of either people ; 
they float for a moment on the surface and in the wind, 
and then the^^ disappear and are gone — "in the deep 
bosom of the ocean buried!" I do not know, sir, 
who may be my successor here. But I venture to as- 
sure you that he will be an American gentleman, fit 
bj' character and caj^acitj^ to be a medium of communi- 
cation between our countries ; and an American gentle- 

i88 



FAREWELL TO ENGLAND 

man, when you come to know him, generally turns 
out to be a not very distant kinsman of an English 
gentleman. I need not bespeak for him a kindly re- 
ception. I know he will receive it for his country's 
sake and his own. "Farewell," sir, is a word often 
lightly uttered and readily forgotten. But when it 
marks the rounding off and completion of a chapter 
in life, the severance of ties many and cherished, and 
the parting with many friends at once — especially when 
it is spoken among the lengthening shadows of the 
western light — it sticks somewhat in the throat. It 
becomes, indeed, "the word that makes us linger." 
But it does not prompt many other words. It is best 
expressed in few. What goes without saying is bet- 
ter than what is said. Not much can be added to the 
old English word, "Good-bye." You are not sending 
me away empty-handed or alone. I go freighted and 
laden with happy memories — inexhaustible and un- 
alloyed — of England, its warm - hearted people, and 
their measureless kindness. Spirits more than twain 
will cross with me, messengers of j^our good - will. 
Happy the nation that can thus speed its parting 
guest! Fortunate the guest who has found his wel- 
come almost an adoption, and whose farewell leaves 
half his heart behind! 



IX 

ADDRESS 

DELIVERED BEFORE THE VERMONT HISTORICAL SOCIETY 
AT MONTPELIER, OCTOBER 26, 1 882, ON THE 

LIFE AND PUBLIC SERVICES OF 
SAMUEL PRENTISS 



SAMUEL PRENTISS 



Mr. President and Gentlemen of the His- 
torical Society,— I have been invited to say some- 
thing before you touching the Ufe and character of 
Samuel Prentiss. In the lack of a better substitute, 
I did not feel at liberty to decline; but I can offer you 
nothing in response that shall come up to the mark 
of a fini-shed essay or an elaborate address. I have 
not explored the usual materials of the biographer; 
I have not been able — indeed, I have not cared — to put 
anything upon paper; I have rather preferred to try 
to set before you, in a simple and familiar way, my 
own recollections of the man; to sketch his portrait 
for you, as well as I can, in rough crayon, as it re- 
mains, and will always remain, in my memory. If 
the color of the picture should appear to any of you 
too warm, if it should seem rather the tribute of an 
admiring friendship than the cool discrimination of 
the historian, I shall make no apology for that. You 
will be quite at liberty to bear in mind that the recollec- 
tions I am drawing upon are those of my youth, and 
that the enthusiasm and reverence that are youth's 
happiest gifts leave in all later 3'ears their after-glow 
upon the memories of their time. It is well for us, 
those of us who live to be old, that it is so. It is benef- 
N 193 



ORATIONS AND ESSAYS 

icentl}' ordered ihi\i the old man shall be always 
the laudator temporis sui, the eulogist of his own day. 
1 was warmly attached to Judge Prentiss in his life- 
time; I honor and revere his memory more than that 
of most men I have known ; and I have known many. 
My father and he were bound together, all the days 
of their lives, by the intimacy of an uncommon friend- 
ship. 

"And sacred was the hand that wrote, 
Tliy lather's friend forfret thee not." 

Judge Prentiss was, in all senses of the word, an 
old-fashioned man. His active life was passed within 
the earlier half of this century. He came to the bar of 
Vermont in 1802, and he died in 1857. Historicall}^ 
speaking, the interval since then is not very long ; but 
in the ra])id development of American society it is a 
good while. In all the changes and chances of life 
there is nothing that so forcibly illustrates the saying 
of the Scripture, that " the fashion of this world passeth 
away," as the changes and the differences in the 
generations of men. They succeed each other in a 
perpetual succession, yet no two are ever alike but 
in the certainty of their disappearance. Each has its 
own character, its own successes, its own imperfec- 
tions, its own memories. History', therefore, whether 
personal or national, must be regarded from the point 
of view of its own age; it is idle to try to estimate it 
in the light of ours. .Judge Prentiss belonged to his 
own time. He was the jiroduct of the early days of 
Vermont. There is something easier to state than to 
describe in the influence of the time upon the quality 
of the men produced in the beginning of a State. It 
is akin to what is seen in .some agricultural products, 

194 



SAMUEL PRENTISS 

which are better in the virgin soil than any cultivation 
can ever make them afterwards. Whether it is in the 
dignity of their employment as the founders of in- 
stitutions, whether it is in the vigor and freshness 
which attend the youth of a State, like the youth of 
life, or whether such emergencies bring to the sur- 
face and into conspicuous view a higher order of men, 
whatever the reason may be, the fact remains: the 
fathers are larger than the children. But when we 
eulogize the virtue and the advantages of the past, we do 
not necessarily disparage the present. I am not one 
of those wlio believe that the world degenerates as it 
grows older. As change is the condition of life, so 
compensation is an unfailing condition of change. 
For whatever time takes away, it compensates in 
what it brings. Much that is jirecious perishes as it 
passes; but with new life comes alwaj's new benef- 
icence. 

The events of Judge Prentiss's life can be rapidly 
told. They are few and simple. He was born in 
Connecticut, in 1782, of a good old stock, who traced 
back their lineage to an excellent family in England. 
His great-grandfather fought for the king in the old 
French war, and his grandfather fought against the 
king, a colonel in the Revolutionarj- war. He came 
to Vermont, which was the El Dorado of the best young 
blood of Connecticut in those times, and was admitted 
to the bar in 1802, before he was twentj'-one j-ears of 
age. He practised law in Montpelier until 1825, 
when he was made a judge of the Supreme Court. 
In 1829 he became Chief Justice. In 1830 he was 
elected to the United States Senate, and again in 
1836. In 1841 he was appointed Judge of the United 



ORATIONS AND ESSAYS 

States District Court for Vermont, and held that office 
until he died in 1857, at the age of seventy-five, leaving 
twelve children and a very moderate estate. That is 
the whole story. Thirty-two years' continuous public 
service; yet the events of his life are substantially 
comprised in these few words. But the best lives are 
not made up of events ; they are made up of qualities 
and of attainments. And simple as are the incidents 
that are now to be gathered of that life, it was beyond 
question one of the best and purest of the many good 
lives Vermont has been blessed with. 

I may briefly consider (for I can touch but briefly 
upon anytliing to-night) his life in these four suc- 
cessive epochs, as a lawyer at the Vermont bar, as 
a Judge and Chief Justice of the Supreme Court of 
his State, as a Senator of the United States, and as 
a Judge of the Federal Court of this district. 

He practised law, I have said, for twenty- - three 
years. The phrase is one very commonly employed, 
and has very different meanings. The small petti- 
fogger practises law, to the infinite mischief of the 
community he lives in. And there is another class, 
to whom that term of reproach cannot properly be 
applied, but who content themselves with finding 
in the practice of the law a sort of genteel trade, out 
of which some sort of a livelihood is to be extracted 
without much labor; who never begin to have a con- 
ce]ition of the nobility or the scope of a profession 
that has been well declared to be "as honorable as 
justice, and as ancient as the forms of law"; who 
never studj' it as a science, or in any large waj', but 
content themselves with such little miscellaneous 
acquirements as may answer the purposes of the 

196 



SAMUEL PRENTISS 

small controversies of their locality. And there- 
fore it is that good men outside of the profession are 
sometimes puzzled to imderstand how it should be 
exposed to the sharp and bitter criticism often api)lied 
to it, and at the same time should be the subject of the 
lofty eulog}' heard in the best quarters in regard to it. 
It is because there are lawyers and lawyers; lawyers 
small and great, useful and mischievous. There are 
those who belong to the trade, and there are those 
who belong to the profession. 

Judge Prentiss's life as a lawyer was, of course, 
before m}" time. Mj^ personal acquaintance with 
him began when he was in the Senate of the United 
States. What I know of his previous career I have 
gathered from those who did know him, who are older 
than I, from the records he has left behind him, and 
from what I infer, from my subsequent acquaintance, 
must have been his character and qualities when he 
was a 3'ounger man. 

In the first place, altliough a country lawyer in the 
then little village of Montpelier, and in the small, 
rural, isolated State of Vermont, he proceeded to ac- 
quaint himself, by the most careful and judicious 
and far-reaching study, with the whole range of the 
common law and all its kindred toi)ics. He did not 
terminate his labors with those subjects that were 
likely to turn up for discussion in the Washington 
County Court. He acquainted himself, I repeat, with 
the whole range and fabric of the common law, from 
its earliest foundations and from the dawnings of 
its first fimdamental princijiles. He learned the law 
as the perfection of reason and the science of justice. 
And then he brought to bear upon the practice of it 

197 



ORATIONS AND ESSAYS 

the elevation of character and purity of motive that 
were born to him, and wliich he displayed in every re- 
lation of life. He felt and acted upon the conviction 
that the lawyer as well as the judge is one of the min- 
isters of justice; that he as well as the judge is a sworn 
officer of tlie court; that the administration of justice 
is his business, and not its perversion ; and that he is 
charged with his share of its dut\-, its responsibility, 
and its rei)ute. No mean cause, no disreinitable client, 
no fraud to be vindicated, no wrong to be achieved, 
no right to be defeated, no assassin to be turned loose 
upon the community ever engaged the services of 
Judge Prentiss. Though the legal reports of the State 
were far more meagre at that period than they are 
now, the}' are sufficient to indicate to those who care 
to resort to them the manner of business he was en- 
gaged in. And the consequence was that, although 
at that day Vermont was full of able lawyers, and al- 
though the limited facilities for transportation were 
such as to confine the bar of the State jmncipalh^ to 
the business of their own counties, Judge Prentiss 
more than anj' other man in Vermont was called upon 
to go to various parts of the State; I might almost 
say to all parts of the State in wliich anj' considerable 
courts were then held, and always in important cases. 
Such a lawyer as he was contributes to the law and 
the justice of his coimtry more than most people are 
aware of. He is helping all the time, not onh- the 
particular business in hand — the interests with which 
he is charged— but he is heljiing the court ; he is hel]> 
ing to educate and maintain the court. Wise and able 
judges feel that sensibly. The argument that may 
fail of its application to-day, is seed sown upon good 

198 



SAMUEL PRENTISS 

ground. The effect of it coines afterwards, and bears 
fruit in the general law of the land. 

Such was the course of Judge Prentiss at the bar. 
And it is not surprising that, in the year 1822, a seat 
upon the bench of the Supreme Court was offered to 
liim, and pressed upon his acceptance. Probably 
at that time there were few men in the State of Ver- 
mont better qualified to till it He alone of all the bar, 
with a characteristic modesty that was throughout 
his life beyond any exhibition of that quality I ever 
knew, declined it. He distrusted the ability that no- 
bod}' else distrusted. But three years afterwards, 
when the office was again pressed upon liim, with no 
little reluctance he took his seat upon the bench. It 
is very noticeable in the rejtorts how considerable a time 
elaj^sed before he could bring himself to be the organ 
of tlie court in pronouncing its opinions. He cast 
that duty upon his senior brethren. His associates 
upon the bench were Chief Justice Skinner, Titus 
Hutchinson, and Bates Turner, and afterwards Charles 
K. Williams and Stephen Royce, names among the 
most honorable in our judicial history. But in due 
time he began to write and deliver opinions, and some 
of them remain, fortunately for his reputation. Only 
a part of them, because, as I have said, the reports 
were more meagre then than now. They speak for 
themselves. It is true, thej^ deal largely with ques- 
tions that have been now so long settled that we have 
little occasion to go back to read upon the subjects. 
But the lawyer who is desirous of seeing what manner 
of man he was, and what sort of a court he belonged 
to, and who will take the trouble to peruse these opin- 
ions, will discover that they are distinguished, in 

199 



ORATIONS AND ESSAYS 

the first place, by the most complete knowledge of 
the science of law. And he will find, in the next place, 
that their conclusions are arrived at by logical de- 
ductions from fundamental principles, in a manner 
that to every capacity becomes perfectly luminous 
and decisive. And, finally, that, in every instance, 
the case the court is concerned with had been the 
subject of the most careful, thoughtful consideration, 
until nothing that bore upon the conclusion was over- 
looked, forgotten, or misunderstood. 

Some peoj)le are coming to think in these days 
that a judge can be manufactured out of almost any 
sort of material. And it is true enough that almost 
any man can sit upon the bench, can hear causes, 
and after some fashion can decide them ; and the world 
will go along; there will be no earthquake; there will 
be no interruption of human affairs; he will fill the 
office. But by-and-by it will come to be discovered that 
the law of the land, which apparently has lost noth- 
ing of its learning, has wonderfully lost its justice; that 
conclusions that by learned reasons and abstruse proc- 
esses have been reached are not consonant with justice, 
and establish rules that cannot be lived under. As 
the common people saj% they may be law, but they are 
not right. There is philosophical and sufficient reason 
for this result. It is inevitable. Justice under the 
common law cannot be administered in the long run 
by an incapable man. And he is an incai)able man 
for that purpose who is not a master of the princii)les 
of the law by a knowledge systematic, comprehensive, 
and comj)lete. Because those principles are the i)rin- 
ciples of justice. They are designed for justice. The 
law has no other reason, no other purpose. The judge 

200 



SAMUEL PRENTISS 

who draws his conclusions from this source will keep 
within the limits of justice. The judge who is grop- 
ing in the dark, and depending upon lanterns to find 
his way, who is swaj-ed and swerved by the winds, 
the fancies, and the follies of the daj^ and bj^ the 
fictitious or undiscriminating learning that finds its 
way into midtiplied law-books, will reach conclusions 
which laymen perhaps cannot answer, but which man- 
kind cannot tolerate. Such courts lose public con- 
fidence, and business forsakes them. It is an in- 
variable truth that the more thorough the legal ac- 
quirements of the judge, the nearer his decisions 
approach to ultimate justice. 

I believe I am correct in saying that none of the 
decisions in which Judge Prentiss participated have 
ever since been dejmrted from. I think our Supreme 
Court has not found it necessary in the cour.se of sub- 
sequent experience (and it is human exjjerience that 
tries the soundness of legal conclusions) to overrule 
or materially to modify them. 

In 1830, as I have remarked, Judge Prentiss was 
elected to the United States Senate — we may well 
imagine, ujion no .solicitation of his own — and went 
to Washington to take his seat. And there, as I have 
also remarked, I became personally acquainted with 
him. 

And you will pardon me if I digress to say a word 
about that body as it existed when I saw it for the 
first time. To comprehend what Prentiss was it is 
necessary to comprehend what were his surroundings, 
and who were his as.sociates. I venture to .say that 
this world, so far as we have any account of it, has 
never seen assembled a legislative body which, on the 

201 



ORATIONS AND ESSAYS 

whole, and taking all things into account, could com- 
pare with the United States Senate at that period of 
our history. Not the Roman Senate, in its most 
august days; not the Parliament of England, when 
Burke and Pitt and Sheridan made its eloquence im- 
mortal ; not that revered body of men who assembled 
together to create our Constitution. In the first place, 
it was made up by the selection of undoubtedly the 
very best men in every State in the Union who could 
be furnished out of the political party which had the 
ascendency in the State for the time being. The 
consequence was that they were, almost without ex- 
ception, men of the largest and most distinguished 
ability ; and only the presence of the great leaders I 
shall refer to i)resently prevented almost any member 
of that body from assuming a position of acknowl- 
edged leadership. Though party conflicts at times 
ran high, their contentions were based, upon both sides, 
upon the Constitution, and upon the broadest and most 
statesman-like views. Men might well differ, as they 
differed, about the right and wrong of the questions 
and issues of the day. Much was to be said upon both 
sides. But one thing was to be said on all sides; 
and that was that no man need be ashamed of being 
upon either side, because the ground- work of all was 
broad and statesman-like and defensible. 

There wa.s, besides, a dignity, a courtesy, an ele- 
gance of deportment pervading the deliberations of 
that assembly that could not fail to impress every- 
body who had the advantage of coming into its ])res- 
ence. No coarse personalities, no vulgarity of lan- 
guage or conduct, no small parliamentary trick or 
subterfuge was ever tolerated. And rarely have been 

202 



SAMUEL PRENTISS 

brought together a body of men of such uniformly 
striking and distinguished personal presence. 

Time does not allow me even to name more than 
two or three of its members. I might cite ahnost the 
whole roll of the Senate in illustration of what I have 
said. Their names remain upon record as part of our 
history. It was once said that to have known a cer- 
tain beautiful woman was a liberal education. I could 
say, with far less exaggeration, that for an American 
citizen, and especiall}' a young American citizen, to 
have known and seen the United States Senate of 
that day was a liberal education in what it most be- 
hooves an American citizen to know. He would have 
learned there, in such manner as never to forget, the 
difference betvv'een the gentleman and the charlatan, 
between the politician and the statesman, between 
the leader of men who guides and saves his nation 
and the demagogue who traffics in its misfortunes 
and fattens upon its plunder. 

I have alluded to the great leaders who controlled 
tlie policy, guided the action, and gave character to 
the deliberations of that body. In their presence 
there could be no other leaders. And I refer to onlj' 
three of them, Mr. Webster, Mr. Clay, and Mr. Calhoun. 

Nothing can be said of Webster at this day t'lat 
enlightened people do not know. As he said of Massa- 
chusetts, the world knows him by heart. But those 
who are too young to have seen him can never know, 
after all, splendid as the works are that he left behind 
him, the manner of man he was, as he appeared in 
those daj's — the prime and flower of his life. His 
very presence was an irresistible magnetism. He 
could not pass through the streets of Washington 

20'? 



OKATIONS AND ESSAYS 

but evcr3'bod3' turned to regard or to follow him. He 
was never out of the public eye. Every word that he 
si)oke was listened to, almost as if it had been a revela- 
tion. Far beyond all men I ever saw, he possessed 
that wellnigh supernatural personal magnetism that 
gave an indescribable power to words which, when 
rej)eated b}' another, seemed to have no unusual sig- 
nificance. He was the great advocate, the lumi- 
nous and decisive reasoner, whose language not only 
impressed the Senate, but, eagerly waited for, sank 
deep into the best intelligence of the country. 

Clay, though a great man was as different from 
Webster as the rock-bound coast of Massachusetts is 
different from the blue-grass pastures of KentuckJ^ 
He was the acknowledged leader of the Whig partj', 
as Webster was its greatest luminary. What Webster 
said passed into the permanent literature of the coun- 
try, the most jiermanent we have. What Clay said 
was like charming music ; its immediate effect was 
{)owerful, but when it was over, it was gone; nothing 
remained. Every school-boy can recite the splendid 
j)assages of Webster's eloquence. The best educated 
man to-day could hardly, without j)reparation, re- 
peat one line from Clay. And yet no speaker had a 
greater magnetic power over liis audience wliile the3' 
listened. His manner was splendid. It was over- 
powering. The young man who came within the scope 
of it was carried away captive; he was a Clay man as 
long as he lived. And the audience that fell under a 
spell impossible to describe, because no trace of it re- 
mains, were carried along with him almost wherever 
he chose. He was as imperious in his leadersliiji, 
as splendid even in his arrogance, as he was iti his 

204 



SAMUEL PRENTISS 

courtesy. He could fascinate; he could overcome. 
He was a born leader, a statesman by birthright, 
the originator of great measures. He carried the 
feeling of the countr}', as Webster did its convictions. 

Very different from either was the third of that 
great triumvirate of American statesmen, Mr. Cal- 
houn, to whose character we at the North have hardly 
done justice. His political opinions are all gone by, 
never to be revived. However we may dissent from 
them, the man himself, now that the conflict is over, 
should be estimated as he was. He was of a singularly 
upright, sincere, and disinterested personal character, 
simple yet elegant in manner, reserved in his inter- 
course with the world, shunning publicitj^ as far as 
possible, but warm in his attachments to his friends. 
No man was ever more beloved by the people of his 
section. If they could have made a President, he 
would have been their choice. His intellect was more 
keen, subtle, and incisive than broad, and disciplined 
to the last degree by study and thought. His views 
were philosophical rather than practical, those of 
the student rather than of the manager of affairs. 
As a speaker, his sole weapon was pure reason, with- 
out rhetoric or eloquence. He digressed neither to the 
right hand nor to the left. Fluent of speech, earnest, 
but impassive as a statue, faultless in language, the 
stream of calm, subtle, unbroken logic, disdaining 
ornament, and declining the ordinary resources of the 
orator, was fascinating to the listener, and almost 
irresistible in its persuasion, however dangerous in 
its conclusions. 

Through it all ran a tinge of unexpressed melan- 
choly, the half-conscious sadness of the prophet who 

205 



ORATIONS AND ESSAYS 

foresees the coming sorrow that is hid from the com- 
mon 63-6. The undisputed leader of Southern pohtical 
thought, he was the author of the constitutional theory 
that culminated after many years in the war of the 
Rebellion: that the Union is a partnership of States, 
that can be dissolved at will, not a government es- 
tablished by the people, perpetual in its character. 
To the maintenance of this proposition and its vari- 
ous corollaries all the resources of his tireless ability 
were devoted. Utterly as it has since been refuted, 
there was a time when in Mr. Calhoun's hands it 
seemed wellnigh luranswerable. No ordinary consti- 
tutional lawyer was qualified to meet it. When Mr. 
Hayne's great speech on this subject was made, in 
1830 (and it was a great speech), its whole material 
was a reproduction of the views of Mr. Calhoun, then 
Vice-President. Northern men gathered in dismay and 
said, " Can it be answered?" And one man came to 
Mr. Webster with the question, "Can it be answered?" 
"We shall see, sir," rei)lied he, "we shall see — to- 
morrow." And on the morrow the country did see, 
and never forgot. They saw the Southern idea utterly 
demolished, with a logic that convinced all minds, 
and an eloquence that melted all hearts. Then and 
there it was that "the lost cause" was lost. There 
was the first great battle. If the Calhoun construction 
of the Constitution had been sound, secession would 
have been right. And if right, it would have suc- 
ceeded. The lofty and noble proposition set forth 
by Mr. Webster — that our government is greater than 
a partnership and more durable than a contract — a 
union now and forever, with which liberty itself is one 
and inseparable — sank deep into the hearts of Northern 

206 



SAMUEL PRENTISS 

men, and remained there. It was this conviction 
that brought them up to the demands of the final crisis, 
and enabled them to vindicate on the field what had 
been demonstrated in the Senate. They were thrice 
armed when their quarrel was shown to be just. 

The echoes of that great eloquence still lingered 
round the Capitol, and the answering public sentiment 
was strong. No man saw more clearly than Mr. 
Calhoun did, for his foresight was far-reaching, that 
the cause he contended for had received its death-blow; 
that the North would never yield the point. But he 
clung to it still with the tenacity and the sadness of 
despair. Involved, as he thought, were the civiliza- 
tion, the institutions, tlie social life, the prosperity, 
that were precious to his j^eople and dear to himself. 
Again and again he marshalled in its support that 
strong and brilliant minoritj^ who trusted and followed 
him. With will unconquerable, with intellect inex- 
haustible, but with unfailing self-command and knight- 
h^ courtesy, he fought still for the smitten cause and 
the forlorn hope. Always respected by his oppo- 
nents, his personal dignity he never lost. He was a 
power in the Senate, though not its greatest power; 
not its largest figure, but one of its most striking, 
most interesting, most fascinating. 

Such were the men who gave leadership and char- 
acter to the United States Senate in those daj\s. And 
such were they who were associated with those leaders. 

Into that stately assembly walked, in 1830, one 
of the most modest, reticent, quiet gentlemen that 
ever lived ; with no self-assertion, seeking no leader- 
ship, making few speeches, taking nothing at all upon 
himself, the representative of one of the smallest and 

207 



ORATIONS AND ESSAYS 

most rural States of the Union, with no ambition to 
gratify, no i)urposes of his own to serve. But he 
came here, not to be inquired of by his distinguished 
associates, "Friend, how earnest thou in hither?" 
He came to take his place from the first, and to retain 
it to the last, as their acknowledged peer. No man 
in that Senate was more thoroughly respected and 
esteemed. No man was more listened to when, on 
comparatively rare occasions, he thought proper to 
address them. No man's opinion had more weight; 
no man's intimacy was more courted by the great men 
I have alluded to than that of Samuel Prentiss. His 
position there and his standing in the Senate were 
such that he not only represented, but honored, his 
State. It was a remarkable exliibition of the influence 
of high character and of quiet intellectual force. He 
came to be regarded by many as the best jurist in the 
Senate, yet no jurist said so little on the subject. Al- 
though Judge Story was then sitting, in the height 
of his fame, on the bench of the Supreme Court, Chan- 
cellor Kent declared that he regarded Judge Prentiss 
as the first jurist in New England. And what was a 
great deal better than that, he was a man of an inde- 
pendence of character that nothing could swerve. One 
might suppose from what I have said of his modesty 
and gentleness, his consideration for others and his 
distrust of liimself, that he would be a man who could 
be easily swayed and influenced. He was like the 
oak-tree, its branches bending in the breeze, the trunk 
solid and immovable. When the bankrupt law was 
jiassed in 1840, though it was strenuously urged by 
the Whig party, to which Judge Prentiss belonged, 
he opposed it. He stood out against the almost uni- 

208 



SAMUEL PRENTISS 

versal public demand ; and he made a speech against 
it which was said on all hands to be the ablest speech 
of the whole debate. He could stand alone well enough, 
when there was anything worth standing out about. 
The subsequent history of that bankrupt law demon- 
strated that Judge Prentiss was right. It was an 
ill-advised, hasty piece of legislation, which Congress 
was glad afterwards to abandon and repeal. 

I cannot dwell upon incidents of his Senatorial 
career. I cannot rehearse or repeat anything from his 
speeches. I must pass superficially over much that 
might be dwelt on. The flj'ing hour admonishes me 
that I must hasten on. One single passage let me 
quote from memory — and I can repeat substantially 
his language — in a speech made in the United States 
Senate in 1841, when, in his own quiet and modest 
way, he expressed what was the guiding principle 
of his public and political life. "I would not be un- 
derstood," he says, "as undervaluing popularity, be- 
cause I disclaim it as a rule of conduct. I am quite 
too humble and unpretending an individual to count 
greatly upon it, or to seek for or desire any which 
does not arise from the pursuit of right ends by right 
means. Whatever poj)ularity that may bring will l^e 
as grateful to me as to any one. But I neither covet 
nor am ambitious of any other." He expressed in 
that modest way the same thought Lord Mansfield 
e.xpressed when he said, "I am not insensible to pop- 
ularity; but I desire the popularity that follows, not 
that which is run after." 

In 1841, very near the conclusion of his second term 
in the Senate, he was appointed, by universal consent, 
and with unqualified approbation. Judge of the United 
O 209 



ORATIONS AND ESSAYS 

States Court for the District of Vermont, to succeed 
Judge Paine, who had deceased. He went upon the 
bench, and remained there the rest of his Ufe. 

hi those days Judge Nelson was the judge of the 
Supreme Court of the United States who was assigned 
to this circuit. And, unUke the judges of our daj-, 
who are either too busy or too httle incHned to travel 
about the country and hold circuit courts, it used to 
be Judge Nelson's practice, and his pleasure, to come 
up into Vermont once a year at least, and sometimes 
oftener, and sit in the United States Court with Judge 
Prentiss. If there ever was a better court than that, 
for the daily administration of human justice, j'ear 
in and j^ear out, in great matters and small, I do not 
know where it sat. The men were entirely imlike. 
No two judges so eminent could have been less alike 
than thej^ were. Judge Nelson was not a great law- 
yer ; he was a verj' good one. He had a large judicial 
experience, natural judicial finalities, great practical 
sagacity, a strong sense of justice, and the moral 
courage of a lion. He was probably one of the best pre- 
siding magistrates that has sat upon the bench of any 
nisi prins court in our day. Not, I repeat, because 
he was a great lawyer, but because he was a great 
magistrate. He had a sway over the proceedings 
of his court that controlled its results for good; there 
was a moral power and dignity about it that was 
salutary in its influence, not only on the business in 
hand, but upon everybody that came near it. It was 
felt by counsel, by juries, bj' witnesses, by parties. 
I used to think, as Justice is depicted as bearing the 
scales and the sword, that Prentiss carried the scales. 
and Nelson the sword. Prentiss carried the scales, 

210 



SAMUEL PRENTISS 

hung upon a diamond pivot, fit to weigh the tenth 
part of a hair, so conscientious lie was, so patient, 
so thoughtful, so considerate, so complete in his knowl- 
edge of every principle and every detail of the law 
of the land. When he held up the scales, he not only 
weighed accurately, but everybody felt that he weighed 
accurately. But liis very modesty, his distrust of 
himself, his fear lest he should go too far or too fast, 
deprived him to some e.xtent of what might be called 
the courage of his judicial convictions. Nelson, when 
they sat together, always took care to assure him.self 
from Judge Prentiss that he was right in his conclu- 
sions. They never differed. It would have been very 
difficult to have brought Judge Nelson to a different 
conclusion from what he was aware Judge Prentiss 
had arrived at. But the sword of justice in Nelson's 
hand was "the sword of the Lord and of Gideon." 
And when a decision was reached, it was put in force 
without delay or further debate, and without recall. 
And so it was that the court became like the shadow 
of a great rock in a weary land. It carried with it 
an inevitable respect and confidence. It was a terror 
to the evil-doer, and the i)rompt protection of the just. 
And yet so modest, even in that fine and ripe and 
consummate experience and knowledge that Judge 
Prentiss had attained, so modest was he in its exercise, 
that it was difficult to bring him to a final decision 
in important matters without the assistance of Judge 
Nelson. And he never could be brought, though 
much urged, to go to the city of New York to assist 
in the discharge of the press of business there, as it is 
customarj' for judges to do, and as I am frank to say 
he ought to have done. He did himself injustice by 

211 



ORATIONS AND ESSAYS 

the excess of his modesty ; but, after all, it was an error 
on the praiseworthy side. 

These desultory observations upon Judge Prentiss's 
life, in its various relations, may i)erhaps have indi- 
cated sufficiently what I desire to convey in regard 
to the qualities of his character and his intellect; he 
was a man of rare and fine powers, of complete at- 
tainments in jurisprudence, a student and a thinker 
all the days of his life ; conservative in all his opinions, 
conscientious to the last degree, thoughtful of others, 
a gentleman in grain, because he was born so, a Chris- 
tian in the largest sense of the term, whose whole life 
was spent in the careful discharge of his duty, without 
a thought of himself, his own aggrandizement, or his 
own reputation. I saw him for the last time I ever 
saw him on the bench of his court, towards the close 
of his life, j)erhaps at the last term he ever held. He 
was as charming to look at as a beautiful woman, 
old as he was. His hair was snow-white, his ej'es had 
a gentleness of expression that no painter can do 
justice to ; his face carried on every line of it the impress 
of thought, of study, of culture, of complete and con- 
summate attainment. His cheek had the color of youth. 
His figure was as erect and almost as slender as that 
of a young man. His old-fashioned attire, the snowy 
ruffle, and white cravat, the black velvet waistcoat, 
and the blue coat with brass buttons, was complete 
in its neatness and elegance. And the graciousness 
of his presence, so gentle, so courteous, so dignified, 
so kindly, was like a benediction to those who came 
into it. Happy is the man to whom old age brings 
only maturity and not decay. It brought to him 
not the premonitions of weakness, of disease, and 

212 



SAMUEL PRENTISS 

dissolution, but only ripeness — rijieness for a higher 
and a better world. It shone upon him like the light of 
the October sun on the sheaves of the ripened harvest. 
Of his private and domestic life I forbear to speak. 
Historical societies have nothing to do with that. 
Some here are old enough to remember the admirable 
woman, his wife. Some may still remember his home, 
in a da3^ when, as I have said before, the times were 
different from what they are now. Steam had not 
put out the tire on the hearth. Ostentation had not 
paralyzed hospitalit}^ The houses swarmed with 
healthy children. There were fewer books, but more 
study. There was less noise, and more leisure. There 
was plainer living, and better thinking. He had, as 
some knew, peculiarities — eccentricities, they might 
be called — in his personal conduct. They were noth- 
ing, probably, but the outgrowth of a strong individ- 
uality, which consideration for others restrained from 
having any other vent. His ways were exact; they 
were set; they were peculiar. When he came down 
from his chamber in the morning, and his faniilj^ and 
his guests were in the house, he spoke to no one. It 
was understood that no one should speak to him. He 
passed through them as if in a vacant room to his 
particular chair. He took down the Bible and read 
a chapter ; and he rose up and offered a prayer. And 
then he went to the breakfast-table. After that, there 
was no courtesy more benignant and kindly than his. 
And that was an unvarying practice; and every one 
who knew the ways of his household respected it. 
It was the flower of that old-time reverence winch dis- 
tinguished his whole life; when he came forth in the 
morning, he spoke to God first. 

2^r, 



ORATIONS AND ESSAYS 

It never seemed to me — I was too far away at the 
time of his funeral to be present — it never seemed to 
me that he was dead. It never seemed as if I should 
iind his grave if 1 explored your cemetery. He seemed 
to illustrate how it was that in the old days it came to be 
believed that some men departed this life without dy- 
ing. He looked to me like a man who was only waiting 
to hear the words, "Friend, come up higher"; — like 
one who in due time would pass on before us, not 
through the valley of the shadow of death, appointed 
to all the living, but walking away from us, upward 
and onward, until, like the prophet of old, he walked 
with God, and disappeared from our sight among 
the stars. 

It has been said, and often repeated, that histor}^ 
is philosophj' teaching by example. That is as true 
of personal history as of national because the one 
is only the aggregate of the other. The mere flight 
of time does not make history. For countless ceii- 
turies the land we live in lay tmder the eye of the Al- 
mighty, and the morning and the evening rose and 
fell upon it, and the summer and the winter came 
and went, but it had no history, because it had no 
civilized life. History is the story of the life of men ; 
principally the public and conspicuous men; strictly 
the aggregate life of all men. There are lives enough 
that terminate at the grave, that display no example, 
point no moral, transmit no inheritance. They are 
but the dust that returns to the dust again. No his- 
torical society need busy itself about them. They 
are not those that make the history of a nation great. 
I have spoken (how imperfectly, no one knows better 

214 



SAMUEL PRENTISS 

than I do) of one of the illustrious lives of the earlier 
annals of Vermont. But he did not stand alone. He 
stood among his peers, among the men of his day 
in the State of Vermont, eminent, useful, distinguished 
in all the departments of life, and especially in public 
life. The3^ are all gone — like him — with him. They 
have bequeathed to us a historj^ than which there 
is no better. There are more splendid histories ; there 
are none more worthy, more noble, than that of our 
own State of Vermont. No people have more right 
to be proud of their history than we have. 

And the moral of such lives is, that it is for us to pre- 
serve that history unimpaired and unstained, and to 
transmit it to the children who are growing up about 
us, and who will so soon fill our places. 

How shall it be done? By seeing to it that the quality 
of the men in public places and public trusts does not run 
down. I do not say this becau.se I think it needs 
specially to be said in the State of Vermont. Our 
high places are still worthily fdled. But it is a point 
to which the attention of American people everywhere 
needs to be directed. As long as the.se lives are noble 
and great, so long we shall maintain the honor of the 
history and the beneficence of the prosperity of the 
State of Vermont. 

It is a common .saying that this is a government of 
the people. That is a mistake ; there never was a gov- 
ernment of the people. No people can administer a 
government ; they only designate the men who shall 
administer it. That is what they have to do, and all 
they can do. We have seen the manner of men that our 
fathers placed in the discharge of public trusts. If 
the same superiority which they demanded, we demand, 

2 IS 



ORATIONS AND ESSAYS 

it will be forthcoming. The world has not depreciated. 
There is as much capacity in it as there ever was. If 
it is called for, it will come to the surface. If it is made, 
as it should be, the exclusive requisite to public office 
of importance, it will not fail to be found. It is time 
there was courage enough to controvert the idea that 
in some parts of this country' is making its way, that 
all that is necessary to qualify a man for high office 
is the cunning that enables him to get into it. Tlie 
government of the country requires personal superi- 
ority; superiority of natural capacity', superiority of 
attainment; the acquirements of those who have been 
willing to toil while others slept; and it is time that 
we had the sense to think so, and the courage to saj' so. 
When the day comes, as it has come in too many 
other places, when the road to high office shall require 
a man, instead of attaining the requisite superioritj^ 
to divest himself of all appearance of superiority to the 
general mass of mankind, and to assimilate himself 
as completely as possible with those who are inferior; 
and having thus achieved a mean and unworthy 
popularit3^ then to exercise his ability' in crawling into 
place, by traffic, and management, and intrigue — 
when that time comes, I say, it will need no prophet 
or astrologer to cast the horoscope of our State. The 
dry-rot will permeate every timber of the edifice that 
our fathers reared and all the glory of the past will 
be lost in the dishonor of the future. 



X 



SKETCH 

OF THE LIFE OF 

ISAAC FLETCHER REDFIELD 

CHIEF-JUSTICE OF VERMONT 

Published in Vul. XLXX of the Reports of tlie Supreme Court of Vermont^ p. 519 



ISAAC F. REDFIELD 



Since the publication of the last volume of these 
reports, Isaac Fletcher Redfield, for more than twenty- 
live years a Justice, and for more than eight years 
of that time the Chief Justice, of the Supreme Court of 
Vermont, has passed away. Though not a member 
of the Court at the time of his death, some notice here 
of a life in so large a part devoted to its service seems 
appropriate and becoming. 

He was born in Weathersfield, Vermont, on the loth 
of April, 1804, the eldest of a family of twelve children. 
His father. Dr. Peleg Redfield, removed to Coventry, 
in Orleans County, in 1808, where he sjjent most of 
his life, a prominent physician and much - respected 
citizen, and died in 1848, at the age of 72. Judge 
Redfield graduated with high honors at Dartmouth 
College in 1825, entered immediately upon the study 
of the law, and was admitted to the bar in Orleans 
Comity in 1827. He rose rapidly in his profession 
and in public estimation, and held from 1832 to 1835 
the office of State's Attorney for that county. In 
February, 1834, on motion of Daniel Webster, he was 
admitted to the bar of the Supreme Coiui of the United 
States, Chief Justice Marshall presiding. 

At the October se.ssion of the Legislature of Ver- 
mont in 1835, he was elected a Justice of the Supreme 

219 



ORATIONS AND ESSAYS 

Court. He was then only thirty-one years of age, tl:e 
3-oungest man who has ever attained that office in this 
State. His election was entirely unexpected to himself, 
especially as his political opinions were not in accord- 
ance with those of the majority of the Legislature; and 
it afforded a very marked proof of the personal and pro- 
fessional reputation he had acquired. His associates 
on the bench at the time he took his seat were Charles 
K. Williams, Chief Justice; Stephen Royce, Samuel 
S. Phelps, and Jacob Collamer. It is not too much to 
say that the Court thus formed has never been surpassed 
in this country. Judge Redfield accepted the appoint- 
ment with much hesitation and distrust of his own 
powers ; but had very soon the satisfaction of knowing 
that he was regarded bj' the bar as the fit associate of 
his distinguished compeers. 

For twenty-four successive years after his first elec- 
tion (the judges being then annually elected in Ver- 
mont), he was unanimously re-elected by the Legislat- 
ure, though a large majority of that body were during 
that time opposed to him in political sentiment. Judge 
Williams, in 1846, and Judge Royce, in 1852, succes- 
sively retired from the Chief Justiceship, full of 3'ears 
and honors. Judges Phelps and Collamer had mean- 
while passed from the bench to the United States 
Senate, the former in 1838, the latter in 1842. Judge 
Redfield succeeded Judge Royce as Chief Justice, 
and was eight times unanimously elected to that office. 
These facts are far more significant to show the es- 
timation in which he was held by the bar and the 
people of Vermont than any comment that can now 
be made. His term of office was longer than that of 
any judge who ever sat upon the bench in the State, 

220 



ISAAC F. REDFIELD 

though exceeding by only two months that of Judge 
Roj'ce. 

Judge Redfield's judicial opinions, so far as reported, 
are contained in the Vermont Reports from Vol. VIII. 
to Vol. XXXIII., extending through the best period of 
his life. They form the enduring monument by which 
he will be judged among lawyers when all the genera- 
tion of those who knew him shall have followed b.im 
to the grave. They exhibit the judicial cast of his 
mind, the vigor of his reasoning powers, the extent 
and accuracy of his learning, his unwearied industry, 
his clear, strong, conscientious sense of justice, the 
breadth of his views, the elevation of his sentiments. 
They show in some measure the field of his exertions 
and the usefulness of his long service in the administra- 
tion of justice. Of all his writings, they are the most 
significant of the character and mental structure of 
the man, because they are not the mere discussion 
of theoretical principles, or the enunciation of abstract 
conclusions, but contain that practical application of 
legal truth to the affairs of life and the course of justice 
in the success of which the law and the judge find 
their true test, and their only substantial value. " What 
good came of it at last?" is the question that man- 
kind will ultimately applv to the finest of learning 
and the most exhaustive of disquisitions. It is upon 
this final and best criterion, the justice which they 
wrought in the cases to which they were addressed, 
and the wholesomeness of the general sj^stem of law 
which they helped to build up, that these recorded la- 
bors of Judge Redfield and his associates, during a 
quarter of a century, may be safely left to the consid- 
eration of posterity. 

221 



ORATIONS AND ESSAYS 

Judge Redfield's opinions were perhaps more dis- 
tinguished in the departments of equit}^ commercial 
and raihvay law. It would be interesting to advert 
to some of the more important of them, and to trace 
their influence in the deliberations and conclusions 
of other courts. But the limits of this brief sketch 
do not admit. Two or three general characteristics 
are all that can be mentioned. 

There are lawj^-ers who, strong in principles and 
vigorous in deductive reasoning, too little regard the 
light and the learning afforded by the labors of others. 
There are those, on the other hand, who Imow little 
but cases, and can be brought to almost any conclusion 
that seems to be sustained by what is called authority ; 
b}' whom the rejiorted decision of a court can never 
be answered, excejit by the counter-decision of some 
other court. Between these two classes of lawyers. 
Judge Redfield occupied, very fortunately, a middle 
ground. A diligent student at all times, thoroughly 
acquainted with the course of English and American 
decisions, drawing largely upon their reasoning, and 
in no respect undervaluing their authorit}', established 
principles, and a strong sense of justice and of right 
were, after all, the controlling element in bringing him 
to results. He was never brought " by learned reason 
to absurd decrees." Technicalities were not allowed 
to subvert justice when by any fair means they could 
be surmounted or escaped. He regarded the general 
field and current of decision, rather than those iso- 
lated cases always to be found, which constitute the 
ignes fatiii of the law, and serve to lead weak minds 
astra}'. He followed authority, but he questioned 
the validity of tliat authority which controverted 

222 



ISAAC F. REDFIELD 

sound principles, or conducted to unsatisfactory judg- 
ments. 

His views of the law were alwaj's elevated. He did 
not look upon it as an aggregation of arbitrary rules 
and disconnected machinery, but as a broad, fair, and 
noble science that ought to pervade with a salutary and 
wholesome influence all the affairs of human life; as 
not merely the protector of private right, but equally 
tlie conservator of public liberty. Neither his reading 
nor liis thought was circumscribed by the narrow 
channel of the subjects actually in controversy be- 
fore him. He made himself familiar with the higher 
branches of jurisprudence, its constitutional fomida- 
tions, its history, its philosophy, its moralit}^ its lit- 
erature, its connection with the framework of society 
and of government. He became not only a lawyer, 
but a jurist, in the true sense of the term. Such studies 
enriched liis opinions with a many-sided scholarship, 
and gave them an elevated and dignified sentiment. 
They rest, when important questions are to be con- 
sidered, upon broader and higher grounds than mere 
technical rules or arbitrary precedents. 

Judge Redfield contributed largelj^ in the course of 
his judicial service towards that gradual infusion of 
equity principles into the rules of the common law 
that has marked its recent progress, and has brought 
the two systems so much nearer together than formerly. 
Many of his opinions could be cited as illustrations of 
this. Striving always to make the standard of legal 
judgment as nearly as possible that of sound moral- 
ity and substantial justice, and strongly predisposed 
towards the views of courts of equity, he was a persist- 
ent advocate, often somewhat in advance of the current 

22^ 



ORATIONS AND ESSAYS 

of decision, of a liberal adojition of those views in de- 
termining the questions and administering the reme- 
dies of courts of law. 

The railway system in America had its origin and 
grew up while Judge Redfield was upon the bench, 
and opened a new and wide range of questions and 
controversies for judicial decision. It is not often that 
an original field of inquiry is presented to courts of 
justice. Thej^ have mainly to travel in beaten paths, 
and originality in the law proves usually a very ques- 
tionable virtue. What the commercial law was to 
Mansfield, and the Constitution of the United States 
to Marshall, railway law became in a lesser degree 
to Redfield and his associates. Happily, they were 
found equal to the occasion. It happened that very 
many of the important questions on all the branches 
of this subject came before the Supreme Court of 
Vermont before they had been decided elsewhere. 
Their decisions on these questions form, when taken 
together, a body of railway law that is very nearly 
complete, and may be referred to with a just pride by 
the bench and bar of the State. They have been large- 
ly followed elsewhere, and remainal most entirely 
unassailed in the determinations of other courts. In 
these decisions Judge Redfield took a leading part, and 
devoted much labor. He had the advantage of able 
assistance, and usually a fortunate concurrence of 
opinion on the part of his associates. The attention 
he was thus compelled to give to the subject, and the 
interest it awakened in his mind, led to the prepara- 
tion of his treatise on The Laiv of Railways, which he 
published in 1857. It met the immediate demand of 
the time, and speedily attained a very wide circulation. 



ISAAC F. REDFIELD 

Its admirable clearness and jirecision of statement, 
the convenience of its arrangement, the soundness and 
practical value of its conclusions, and the fulness of its 
citations made it, what it is likely to remain, the ac- 
knowledged and standard text-book on the subject. 
Five editions of the work have been published. It 
has come not only into universal use in this country, 
but is referred to with frequent api)robation by the bench 
and bar in England. The success of this book, and 
the growing attention his judicial opinions had attract- 
ed, especially after he became Chief Justice, gave Judge 
Redfield a national reputation. Though his court was 
that of a small and rural State, its decisions came to be 
widely known and much respected in other tribunals. 

But the printed records of his labors as a judge and 
an author can exhibit nothing of those qualities of the 
man which enter so largely into the real usefulness 
of a magistrate. His unfailing courtesy and kind- 
ness, his amiable temper, his unquestioned and un- 
questionable purity of character, his patience in hear- 
ing, the miassuming dignity and quiet decorum with 
which he invested the proceedings of his court, the 
practical sense and sagacity with which he encountered 
questions of fact, these are qualities which will be 
always remembered by those who ajijieared before 
him, but of which the memory must die when the 
witnesses are gone. He presided at nisi prius with 
great tact and acceptance. Under his guidance ju- 
ries seldom went astray. And the most disappointed 
suitor carried away a kindly respect for the judge. 
No man was ever more capable of appreciating and 
profiting by a good argument, or was more candidly 
open to its influence. 

p 225 



ORATIONS AND ESSAYS 

In i860, when the great sectional controversy that 
cuhninated in tlie civil war was drawing near its height. 
Judge Rediield clearly perceived that his opinions on 
exciting constitutional questions were likely to be- 
come unpopular and distasteful. In no sense a poli- 
tician, but a student, a scholar, and a lawyer, all the 
days of his life, his sentiments were naturally conserv- 
ative, and not likely to be changed. Too conscien- 
tious and indei)endent either to conceal his opinions 
or to trim them to suit the breeze, he was at the same 
time too sensitive in his nature and too retiring in his 
habits to be willing to do battle against the apprehend- 
ed pressure of popular feeling or the threatened clam- 
or of political excitement. He resolved, therefore, to 
withdraw from the bench and from public life. In 
this resolution he was doubtless unduly sensitive. 
His views upon these questions were those of the best 
constitutional lawyers of the countrj', and were abty 
and courageously maintained by some of its greatest 
judges. Though overborne for a while by the storm, 
they have all been ultimately sustained by the highest 
tribunal, and will always remain the established law 
of the land. There can be no doubt that the expres- 
sion, temperate though firm, that he would have given 
to his opinions when occasions arose, though left in the 
minority for the time, would in the end have added to 
his reputation, and would have commanded the ad- 
miration of those many who had the judgment secretly 
to approve, but not the courage openly to avow them. 
Undoubtedly, notwithstanding these views, he would 
have been retained upon the bench by unanimous 
consent so long as he chose to remain there. 

Other reasons, however, had weight in inducing 

226 



ISAAC F. KEDFIELD 

him to retire. He had been withdrawn so earlj^ by 
judicial promotion from the practice of his profession 
that he had acquired but a slender estate, whicli the 
very moderate salary of his office had not enabled him 
to increase. Liberal offers had been made him to 
become the editor of an edition of Judge Story's works. 
He desired also to publish a new edition of his own 
work on railways, and also certain other legal treatises 
which he had in contemplation. This emplo\'ment, 
and a residence in Boston, promised an agreeable 
change from the labors of the bench, and offered very 
desirable pecuniary inducements. He presided in the 
Supreme Court for the last time at the General Term 
of the whole Court, held at Montpelier in November, 
i860. The last opinion he delivered from the bench 
was in the case of Hart vs. The Farmers and Me- 
chanics' Bank, reported in the thirty-third volume of 
Vermont Reports. 

On the occasion of his retirement, the bar of the 
State adopted a series of very cordial and compliment- 
ary resolutions, which were jiresented in open court by 
Hon. L. B. Peck in their behalf. A very appropriate 
response was made b^^ Judge Redfield. The proceed- 
ings will be found in the thirty-sixth volume of Ver- 
mont Reports, page 762. His withdrawal from the 
bench occasioned sincere and general regret. 

He removed to Boston in 1861, immediately after 
his retirement, and there resided until his death. Dur- 
ing that period his industry was unremitting. Be- 
sides successive editions of his work upon Railway 
Law, now extended with the growth of the law and 
the increase of decisions on that subject to two voUunes, 
he wrote and published a full and excellent treatise on 

227 



ORATIONS AND ESSAYS 

The Law of Wills, in three volumes, and another on 
Carriers and Bailments, in one vohinie. These have 
become standard works. He pubhshed also a very 
useful and well-edited collection of American Railway 
Cases, in two volumes, and one of Leading American 
Cases on Wills, in one volume. He edited an edi- 
tion of Judge Storj''s work on Equity Jurisprudence, 
Equity Pleading, and on The Conflict of Laws, and of 
Professor Greenleaf's work on The Laiv of Evidence. 

It is acknowledged on all hands that the work of 
bringing up these treatises to the advance that had 
taken place since the^^ were written, in these important 
branches of the law, was performed in a manner ev- 
ery way worthy their high character and their distin- 
guished authors. Judge Redfield wrote also many of 
the leading articles in a new edition of Bouvier's Law 
Dictionary. 

For more than twelve years of his residence in Bos- 
ton he was one of the editors of the American Law 
Register, and contributed largely to its leading articles, 
as well as to its notes on decisions of importance and 
interest, and its miscellaneous matter. During all 
this time he was also considerably engaged in giving 
opinions, some of which were published, in cases sub- 
mitted to him. 

Large as his professional work during this period 
of his life was, he 3'et found time for valuable con- 
tributions upon those constitutional questions which 
connect the principles of jurisprudence with those of 
political government. During the war he wrote for 
the London Laiv Revieiv an extended and very able 
article, which was republished in this countr\', vin- 
dicating the nationality of the United States govem- 

22<S 



ISAAC F. REDFIELD 

ment, and also a letter to Senator Foot, which was 
published in pamphlet form, on the powers of the na- 
tional government, and its duties in the matter of the 
restoration of the seceding States, after the termination 
of the war. He wrote and published various other 
articles on kindred topics. 

Judge Redfield was during a large portion of his life 
a member of the Episcopal Church, and deeply interest- 
ed in its prosperity. He was a frequent and interesting 
contributor, both while on the bench and afterwards, 
to The Churchman and other Church journals. He 
was a delegate to the General Convention of the Chinch 
at all its sessions from 1837 to 1861. In the delibera- 
tions of that dignified body, especialty on questions 
that touched the subject of jurisprudence, he had great 
influence. He spoke but rarely, and never at much 
length, but at times with decisive effect. 

At the close of the civil war a considerable amount 
of Confederate property remained in Europe, princi- 
pally in England, consisting of cargoes of cotton, money 
balances, ships, munitions of war, etc. To this i^roj)- 
erty the United States government laid claim. And 
numerous suits in the English Courts of Chancery 
resulted. Most of it was subject to various and com- 
plicated claims by creditors, consignees, agents, and 
others, and the title to much of it was in dispute. 
The pendency and conduct of these various proceed- 
ings became very embarrassing to Mr. Adams, the 
American IMinister to Great Britain, and it was neces- 
sary that competent counsel should be sent to Europe 
to take charge of and direct them. Judge Redfield was 
appointed by Mr. Seward, then Secretary of State, in 
conjunction with Mr. Caleb Cushing, the special coun- 



ORATIONS AND ESSAYS 

sel of the United States government for this purpose. 
He went to England immediately after his appoint- 
ment, and remained there in the discharge of the duty 
assigned him for two years, returning home once 
during the period for consultation with the govern- 
ment. 

The business with which Judge Redfield was charged 
was not onlj' important, but delicate and difficult in 
its bearing upon the relations of the two countries. 
There was much sensitiveness of feeling at that time 
between the people of England and of America, grow- 
ing out of the events of the war and the attitude taken 
by Great Britain. The American claims against 
Great Britain for the heavy losses sustained by priva- 
teers fitted out in England were then unadjusted. 
And it is easy to see how, in rash or unskilful hands, 
the claims of the United States government upon 
citizens of England, litigated in British courts, might 
at that juncture have been made productive of seri- 
ous misunderstandings and disputes. The manner in 
which Judge Redfield and his associate discharged 
this difficult duty, the ability, and at the same time the 
courtesy, tact, and moderation displaj^ed, were worthy 
of all praise, and were in a high degree serviceable 
and creditable to the government by which they were 
employed. All the success was attained which the 
nature of the claims admitted of. Throughout their 
prosecution nothing took place to disturb the rela- 
tions of the governments or to give rise to any ag- 
grieved feeling on the part of the people on either side, 
or of the parties more immediatelj' interested. Some 
of the claims were compromised, and all brought to a 
satisfactory conclusion. 

230 



ISAAC F. REDFIELD 

The circumstances of Judjje Redfield's stay iii Eng- 
land were peculiarly gratifying to him. His reputa- 
tion as a jurist liad preceded him, and the mission 
with which he was accredited brought him into com- 
munication with man}' persons of distinction. He re- 
ceived much cordial hospitalitj', especially from judges 
and eminent lawyers, and from some of the dignitaries 
of the English Church. In such circles his conserva- 
tive views, refmed manners, and cultured conversation 
made him personally very acceptable, and placed him 
in marked contrast with those Americans whom os- 
tentatious wealth has made conspicuous in European 
capitals, or whom the machinery of party politics has 
introduced into a social position in foreign coimtries 
which they had never reached at home. He con- 
tracted many friendships in England that were main- 
tained through the remainder of his life. 

On his return from England he resumed his residence 
in Boston and the employments he had relinquished 
on his departure. From that time to the close of his 
life he still kept at work. In the labors and studies 
that had so long been congenial he found relief and 
consolation througli gathering years and declining 
health. Various leading articles for the Law Register 
were written during this period, among them a re- 
view of the Legal Tender cases, an article on "The 
Right and Duty of Congress to Regulate Commerce on 
Interstate Railways," another on the "Duties of the 
Legal Profession." The last edition of his work on 
railways was also published during this time. And 
so, in the cherished pursuits, continued to the last, 
of the jurisprudence to which he had devoted his life, 
and which he had done so much to cultivate and to 

231 



ORATIONS AND ESSAYS 

dignif}^ ; in the esteem and affection of its disciples, by 
whom he was surrounded; in the communion and 
fellowship of the Church he loved, he drew to the close 
of his life, without an enemy in the world. He realized 
the archangel's benison : 

" Till many years over thy head return, 
So mayst thou live ; till like ripe fruit tliou drop 
Into thy mother's lap ; or be with ease 
Gathered, not harshly plucked ; for death mature." 

He died in Charlestown, Massachusetts, of an attack 
of pneumonia, on the 23d day of March, 1876, near the 
completion of his seventy-second year, and was buried 
at Windsor, Vermont. 

Judge Redfield was twice married: first to Miss 
Mary Smith, of Stanstead, Canada ; afterwards to Miss 
Catherine Clark, of St. Johnsbury, who survives him. 
A son also survives him; a daughter died only six 
months previous to his own decease. A brother, Hon. 
Timoth}' P. Redfield, is one of the Justices of the 
Supreme Court of Vermont. 



XI 
ADDRESS 

DELIVERED IN BROOIvLYN CITY ON MARCH 30, 1896, 

BEFORE THE BROOKLYN INSTITUTE OF 

ARTS AND SCIENCES ON 

THE MONROE DOCTRINE 



THE MONROE DOCTRINE 



I HAVE been asked to address you this evening on 
the subject of the "Monroe Doctrine." This phrase, 
heard by many Americans for the first time, and con- 
veying to most minds a very indefinite idea, has been 
brought before the country with striking effect within 
the last three or four months. It has drawn us dan- 
gerously near to a war with Great Britain, and nearer 
perhaps to a war with Spain. It has caused a paralysis 
upon business and a loss of property in the deprecia- 
tion of securities that no arithmetic can estimate. 
For what cause? Upon what provocation? With 
the countries concerned we are perfectly friendly; 
we have received no injury from them and have none 
to fear; with their people we have no quarrel. With 
one of them we are more closely allied, by every tie that 
can possibly exist between nations, than any indepen- 
dent countries ever were in the history of the world. 
Suddenly, without warning or premonition, this con- 
dition of affairs and its happ^^ presage for the future 
were threatened with violent disturbance. Twenty- 
foiu- hours before the announcement, not a man in 
either country, outside of the American Executive 
Chamber, could have dreamed of such a rupture, on 
any score then existing, or capable of being anticipated. 

235 



ORATIONS AND ESSAYS 

But by a message of the President to Congress it was 
made known to us that an ancient boundary -Hne 
controversy of small importance, between Great Britain 
and Venezuela, which had been dragging along with- 
out conclusion or much attempt at it for the best part 
of the present century, had been taken in hand by the 
United States government; that its proposal to the 
British government that an arbitration should take 
place between that country and Venezuela to deter- 
mine the question, had been assented to in part, but in 
part declined for special reasons, courteously stated; 
and that thereupon, without further discussion, the 
President had decided to ascertain the line by an ex 
parte commission of his own appointment, and to 
compel Great Britain to accept the result. It was not 
pointed out, nor was it true, that the United States had 
the slightest interest, present or future, in the settle- 
ment of the question, or any special alliance or con- 
nection with Venezuela. Nor was it claimed (if that 
could have made any difference) that Great Britain 
had taken a step or uttered a word which showed a 
disposition to encroach upon the rights of Venezuela, 
or to bring any force to bear upon her in the adjust- 
ment of the dispute. Neither was it made to appear, 
even, that she was in the wrong in her contention 
as to the true location of the line, since that question 
was admitted to be involved in such obscurity that a 
learned commission of jurists and scholars was neces- 
sary to discover by laborious investigation whether 
she was right or not, and if not, wherein she was wrong, 
an inquiry upon which, after several months' labor, 
they are still at work. Tt was simply assumed that, be- 
cause the boundary in dispute was on this hemisphere, 

236 



THE MONROE DOCTRINE 

the United States had the right to dictate arbitration 
between the parties as the projier method of ascertain- 
ing its location, and if that was refused, to define the 
hne for herself, and to enforce its adoption. This 
extraordinary^ conclusion was asserted for the first 
time against a friendly nation, not as a proposition 
open to discussion, to which its attention and reply 
were invited, but as an ultimatum announced to begin 
vnih. And it was addressed, not to that nation itself, 
through the ordinary channels of diplomatic inter- 
course, but to a co-ordinate branch of our own govern- 
ment, and thence through the newspapers to the world 
at large. Coming from the President of the United 
States, in a state paper of the highest importance, 
and from a President who has hitherto commanded in 
an unusual degree the public confidence, this con- 
clusion maj^ be usefully considered, since it applies 
not only to the case which gave rise to it, but to the 
other and similar cases which, in the shifting con- 
dition of South American affairs, are likely frequentlj?^ 
to confront us in the future. 

The general rule of international law which precludes 
intervention by a nation in the disputes of other na- 
tions with which it is at peace, and with neither of which 
it has any treaty of defensive alliance, is universally 
conceded, and stands upon the most obvious grounds 
of necessity. Without it the peace of the world would 
be constantly in danger. When such a dispute has 
culminated in hostilities, the intervention of a third 
power against either party is an act of war. To this 
rule there are but two exceptions : where the inter- 
ference is for the purpose of repressing gross outrages 
against humanitj^ like massacre or intolerable cruelty, 

^,37 



ORATIONS AND ESSAYS 

such as are reported to have taken place in Armenia; 
or where the nation interposing is compelled to do so 
for its own protection, in order to prevent a disposi- 
tion of territory seriously injurious to its permanent 
interests, or which would constitute a grave menace to 
them in the future. In this case, as has been already 
remarked, the United States has no such apprehension. 
No advocate of the President's proclamation has under- 
taken to point out how it can affect us, whether the 
line through the jungle of bushes and water, which 
makes up most of the territory really in dispute, is 
drawn a few miles one way or the other. And if we 
could conceive that we have any possible interest in the 
question, it would be on the side of Great Britain. So 
far as that region is capable of civilized occupation, 
it would be better for us and for the rest of the world 
that it should be under British jurisdiction, than in the 
hands of a weak and unstable government, which is 
little more than a succession of spasmodic and ill- 
regulated republics diversified by revolution. Great 
Britain has no port on any sea that is not wide open to 
us without restriction for every purpose of commerce, 
intercourse, or residence; nor anj^ countrj' under her 
flag where the rights of all Americans who may find 
their waj?^ there upon whatever errand are not as 
completely protected as those of Englishmen. We 
load her exports to us with heavy duties, but she im- 
poses none upon ours in return. On the other hand, 
United States interests in South American countries 
have been frequently subject to embarrassment and 
injustice, requiring the interposition of our govern- 
ment. That we are not claimed to have any concern 
in the location of the disputed boundarv is conclusively 

23^ 



THE MONROE DOCTRINE 

shown by the wilHngness of the administration to 
have it settled by an arbitration whicTi we have no 
hand in appointing, to which we are not a party, before 
which we are not heard, and which is charged with no 
consideration of any rights of ours. We profess, in 
short, no other interest in the matter than tliat it should 
be determined one waj' or the other, whether right 
or wrong, by arbitration. Such being the conditions 
of the case, and they are not open to dispute, upon 
what theorv is the position of the United States sought 
to be justified? The answer offered to an astonished 
world is, that it is the necessar}^ result of the Monroe 
Doctrine, and is to be charged to that account. Now 
a proposition that entails such consequences ought to 
be pretty carefully examined. It behooves us to as- 
certain what it stands for, what it means, how far it is 
sound, how far it is going, and what are its limits if it 
has any. 

What, then, is the " Monroe Doctrine "? The phrase 
is of frequent use lately, but of very infrequent attempts 
at definition. Expressing nothing, it may be under- 
stood to express anything. It is generally sup))osed 
to embody a vague idea of some sort of control that 
may be or ought to be exerted by the United States 
over the relations between European governments 
and those of South America. But what control, under 
what right, for what jnuposes, and in what cases, we 
are not informed. The name by which such principle as 
it is thought to stand for is called would be immaterial, 
if it were not that a name often gives currency to an 
idea that can only exist under an indefinable phrase, 
because as soon as it is stated in plain language it re- 
futes itself. It is the constant and necessarj' resort of 

^39 



ORATIONS AND ESSAYS 

those who undertake to maintain an unmaintainable 
proposition, to find a phraseology that will be accepted 
as conveying its meaning, without exposing its f utilit3^ 
When such terms are correctl}' defined, their contents 
disappear. The uncertainty of what is meant by the 
Monroe Doctrine is made apparent by the efforts of 
recent writers and orators to define it, for no two of 
them agree. Some have gone so far that the ground 
taken b}' the President has become moderate in com- 
parison. One asserts that it is the right in our gov- 
ernment to forbid an}' dispute as to a boundary line 
or other question between a European and a South 
American government, however immaterial to us, to 
be settled in any waj^ by the parties to it, without our 
consent. Another still more advanced writer defines 
it to be our right, and corresponding duty, to require 
that every difference that arises between a European 
nation and one in South America shall be adjusted 
bj' arbitration; a species of voluntary agreement that 
he conceives we have a divine mission to compel other 
governments to accept against their will, in matters 
with which we have no concern. Various other novel 
incursions into the field of international law find their 
only defence against absurdity under the convenient 
shelter of the phrase "the Monroe Doctrine," which 
is assumed to be a feature of the American theory of 
government, inherited by some strange canon of descent 
from President Monroe, its inventor, and which we 
are all bound to support whether we understand it or 
not. And when finally we resort to the diplomatic 
communications from our government to that of Great 
Britain, in order to ascertain if possible what is the 
precise right we claim in the present case, and why we 

240 



THE MONROE DOCTRINE 

claim it, we find the answer to those reasonable in- 
quiries to be farther off than ever. 

The pretext for annexing the name of Mr. Monroe 
to these extravagant proposals is found in some lan- 
guage employed in his message to Congress in the 
5'ear 1823. He said : " The occasion has been judged 
proper for asserting a principle in which the rights 
and interests of the United States are involved, that 
the American continents, by the free and independent 
condition which they have assumed and maintained, 
are henceforth not to be considered as subjects for 
future colonization by any European power." Later 
in the same message he said: "We owe it therefore 
to candor, and to the amicable relations existing be- 
tween the United States and those " (Allied) " powers, 
to declare that we should consider any attempt on their 
part to extend their system to any portion of this hemi- 
sphere as dangerous to our peace and safetj'." And 
again : " We could not view any interposition for 
the purpose of oppressing them" (the independent 
South American countries), "or controlling in any 
other manner their destiny b}' anv European power, 
in any other light than as the manifestation of an 
unfriendly disposition towards the United States." 
This is what Mr. Monroe said, and substantially all 
that he said, on the subject. The occasion which called 
forth this language, and the matter it referred to, was 
an intention shown by certain European nations, com- 
bined under what was called the Holy Alliance, to 
aid Spain in regaining her lost authority' over eight 
provinces in South America, which had achieved 
their independence and established republican insti- 
tutions. This was in the infancy of our own republic, 
Q 241 



ORATIONS AND ESSAYS 

when that form of government was almost unknown, 
and was still an untried exi)eriment. It might well be 
contended that to re-establish a European monarchy 
by force over so large a portion of South America 
against the will of its j^eople would have been at that 
time a serious menace to our political system, against 
which, on well-settled principles, we were justified in 
protecting ourselves. And this position was heartily 
concurred in by Great Britain. In respect to the right 
of colonization on this hemisphere by European coun- 
tries, more doubt might arise as to the soundness of 
President Monroe's proposition. It has been opposed 
by eminent statesmen and writers, and rejected by 
Congress in former days. Unless there was something 
in the locality of the proposed colonization that made 
it a menace to us, it might be difficult to sustain the 
objection to it. But that point need not here be dis- 
cus.sed, since it is altogether foreign to the present 
subject, nor is it at all likely at this day that the ques- 
tion will ever recur. 

It will be seen, therefore, that President Monroe 
never asserted, nor did the case he was dealing with 
call for the assertion of any right in this government 
that supports or even approaches the proposition now 
brought forward imder the professed sanction of his 
name. What he did say related to an entirely differ- 
ent state of facts from those now before us, and referred 
to a principle long fundamental in international law 
and universally admitted, of which he was in no sense 
the author: the right of national self-preservation and 
defence in every case and under all circumstances that 
call for its exercise. That is not only the right, but the 
first and paramount duty of every independent nation. 

242 



THE MONROE DOCTRINE 

And it applies as fully to the acquisition of territory 
by another power, when it seriously endangers the 
safety or the important interests of a country, as to 
any other aggression. If this unquestionable right is 
what is meant by the term "Monroe Doctrine," the 
phrase is capable of being clearly understood and 
accurately defined, and it will encounter no denial 
in any quarter. Such is the view of I\Ir. ]\Ionroe's 
propositions taken by Mr. Webster in his celebrated 
speech on the Panama mission, in which he warmly 
defended the message, which had been earnestly at- 
tacked. He said: "The general rule of national 
law is unquestionably against interference in the 
tran.sactions of other states. There are, however, ac- 
knowledged exceptions growing out of circumstances 
and founded in those circmnstances. . . . The ground 
of these exceptions is, as I have already stated, self- 
preservation. It is not a slight injury to our inter- 
ests, it is not even a great inconvenience, that makes 
out a case. There must be danger to our security, or 
danger, manifest and imminent danger, to our essential 
rights and our essential interests. . . . Our right to 
interfere in any such case is but the exercise of the 
right of reasonable and necessary self - defence. It 
is a high and delicate exercise of that right ; one not 
to be made but on grounds of strong and manifest 
reason, justice, and necessity." 

The limits of this occasion do not admit of sustain- 
ing Mr. Webster's views by adducing those of other 
statesmen and writers to the same elTect. Nor is it 
necessary. The propriety of the proposition he has 
so lucidly stated is almost self-evident, and has never 
been denied by any recognized authority. Nor can 

24.3 



ORATIONS AND ESSAYS 

there be a higher or more truly American authority 
than his on any question of international right on 
which he ever had occasion to express himself. 

The application of the right of national self-defence 
to the injurious acquisition by other nations of new 
territory finds its chief illustration in what is called 
in Europe the balance of power. The right of inter- 
ference in such cases by the country thus menaced has 
long been established. But, to justify it, the neces- 
sity for it must first clearl3' appear. It is not in ordi- 
nary cases, nor at the mere will or caprice of the nation 
intervening, nor upon any theory of a constructive, a 
possible, or an unimportant injury, that it has been 
permitted by that general concin-rence of mankind 
which constitutes international law When at the 
conclusion of the war between Germany and France 
the former annexed to itself the provinces of Alsace 
and Lorraine, no other country could have justified an 
interference to prevent it, since it wrought no other 
country any injury. But had Germany undertaken 
to annex France by conquest, the right of European 
nations to protest, by force of anus, if necessary, would 
not have been open to question. The absorption of 
Turkey by Russia would be prevented by the nations 
whose grave interests would be menaced by it. But 
the adjustment between Russia and Turkej' of the ob- 
scure bomidar^' of an insignificant province, in no 
way affecting the outside world, would not warrant 
intervention. When the United States purchased the 
province of Alaska from Russia, would Great Britain, 
though proprietor of so vast a territory in that part of 
the continent, have been justified in undertaking to 
prevent it? How would such an attempt have been 

244 



THE MONROE DOCTRINE 

received by the American people? On the other hand, 
it is easy enough to conceive of new acquisitions by 
foreign powers in South American countries that would 
create a menace to our interests so serious as to author- 
ize and require our resistance. Such was the attempt 
on the part of France to establish a monarchj' in Mexico, 
against which our government successfully interposed. 
Such would be an effort by a Euroj^ean power to obtain 
control of Nicaragua, destined to be the gate through 
which a great commerce will pass, and which our 
plainest interests require should be under our own 
control, or, at the least, that its neutrality and free- 
dom should be completely guaranteed. Illustrations 
might be multiplied, were it requisite or useful. The 
distinction is apparent between the right to intervene 
between other nations where it is reasonably necessary 
to our own protection, and the unfounded claim of 
such a right where it is in no sense necessary. In the 
former case the quarrel in wliich we interpose is no 
longer that of the first parties to it only, for it has be- 
come our own. The difference is the justification on 
which all self-defence depends, whether national or 
individual — the necessity for its exercise. The right 
goes always as far as the necessity', and never goes 
c<ny farther. He who invokes it must justify it by 
showing that it was necessary. 

Now, till some man can stand forth and inform us 
how we are to be injured by the adjustment of that 
Venezuelan boundary line, I shall venture respectfully 
to assert that it is a controversy we have no right to 
meddle with. 

But some of the advocates of the new "Monroe 
Doctrine," who feel compelled to admit that it cannot 

245 



ORATIONS AND ESSAYS 

be maintained as a right, attempt to uphold it as being 
what they call "American policy." 

This ground is, if possible, still weaker. If we have 
no right to intervene in a case where we have no in- 
terest or concern, then such an intervention would be a 
grave infraction of the rights of the nation interfered 
with. Rights are correlative and reciprocal, and where 
we interfere without right, we do so against the rights 
we seek to obstruct. Is it to be maintained that as a 
government it is our policy to do to other nations against 
their will what we have no right to do? Where would 
such a policy stop? And how should we relish it 
when applied to ourselves? That it is the true policy 
of a nation always to assert its own rights is clear, but 
can it ever be its policy to assail the rights of others? 
Again, policy means interest. We can have no policy, 
right or wrong, where we have no interest. The terms 
are synonymous. What sort of a policy is it, then, 
which invades the rights of other nations where we 
have nothing to gain by it? We may have, it is true, 
an interest in attaining by just means that which we 
have no right to demand. That may be the case 
among nations as well as among individuals. But 
such a policy must be worked out by those peaceable 
methods through which in the business of this world 
desirable ends are reached and advantages acquired 
which cannot be taken by force. If, therefore, we 
could even see that we have in this case any interest 
to be attained that is not a right to be enforced, it would 
afford no justification at all for the attemj)t to assert 
it in defiance of the rights of others. 

In no view of the case, then, can the course of the 
administration in this affair be justified. It is a plain 

246 



THE MONROE DOCTRINE 

infraction of those established principles in which 
all nations concur. They have become international 
law, because they are international right ; and thej' are 
right not only because thej' are just, but because thej^ 
are indispensable. International law is international 
morality and justice, formulated by the general con- 
.sent of civilized men. That is its basis and its sanction. 
The claim that .\niericans are in any respect above or 
beyond this law of the civilized world, or that we are 
invested with authority to interfere in the affairs of 
other nations in which we are in no way concerned, 
merely because the location of the dispute is in South 
America, are jiropositions that will find no favor among 
just or thoughtful men. We have no protectorate over 
South American nations, and do not assume any 
responsibility in their behalf. Our own rights there 
as elsewhere, it is to be hoped, we shall never fail to 
maintain. But those rights have their foundation and 
their limit in the settled law to which we are subject 
as all other nations are, and which is as necessary to 
us as to them. 

And when we undertake to assert that we are not 
bound by that law, and care nothing for the opinion 
of the world; that we are Americans and monarchs 
of all we survey ; and that we are going to control the 
part of this hemisi)here that does not belong to us, 
regardless of the rights of those to whom it does belong, 
merelj' for the sake of doing it, and because we tliink 
we are strong enough, we adopt the language and the 
conduct of the bully, and shall certainly encounter, if 
that is persisted in, the bull3''s retribution. 

In respect to the merits of the boundary question 
between Venezuela and Great Britain I say nothing, 

247 



ORATIONS AND ESSAYS 

because I know nothing. Judging from past history 
in similar cases, I beheve it will turn out that there 
is no line there, and never was, that is capable of be- 
ing determined. It has been the history almost al- 
ways of unoccupied regions that their boundaries were 
utterly vague. No occasion to define them having 
arisen, and the world having no use for the territory 
involved, the monimients and landmarks on paper 
that were supposed to designate them usualty turn out 
either not to exist, or to be too indefinite and uncertain 
to be ascertained. By-and-by, in the progress of the 
world, the tide of civilization overtakes such regions, 
they are required for human occupation, and their 
resources are brought to light. Then springs up the 
question of the boundary, and perhaps violent disputes 
in respect to it, and in due time the3' have to be settled 
by a compromise, and by the drawing of an arbitrary 
line that is agreed on and mutually accepted, not as 
the old supposed line that cannot be found, but as a 
new one that is established because just and equitable. 
Such has been the history of our own boundar3' lines 
as they have gradually become important, in Maine, 
in Oregon, and elsewhere, and by that sort of com- 
promise they have been happily established, after 
much war talk. And such is precisely the question 
we have pending to-day w^ith Great Britain, in respect 
to the boundary between Alaska and British Columbia. 
By the description given in the old treatv between 
Great Britain and Russia under which we claim, 
made long before the foot of a white man had been set 
upon that region, and long before any civilized occupa- 
tion of it was anticipated as likely to occur, the boundary 
cannot be drawn, and the designation of it is impos- 

248 



THE MONROE DOCTRINE 

sible to be pursued. The two governments are now 
engaged in surveys, not to find the hne that cannot be 
found, but to acquire materials for making one that 
shall be as nearly as possible just and fair. That, 
I venture to saj', will be the way and the only way in 
which the line between Great Britain and Venezuela 
can ever be established. And if we desired to interfere 
in any controversy between other nations, in which 
we have no interest, such a one as that is the verj' last 
in which we could undertake to find out which party 
is in the right. How should we receive a proposal by 
Mexico to interfere (if that republic was strong enough) 
between us and Great Britain, in respect to the Alaskan 
line, in order to ascertain that line for her.self bj? an 
ex parte conmiission of her own, and then to compel 
the United States to accept it? Yet Mexico is as much 
entitled to a " Monroe Doctrine," in respect to disputes 
arising on this continent in which she has no concern, 
as we are. 

A few words now in reference to our relations with 
Spain, in which what is called the " Monroe Doctrine " 
again comes to the front. If the general intelligence 
of the nation will not permit a groundless war with 
Great Britain, it is proposed in certain quarters that 
we should fight Spain, in order to help the rebels in 
Cuba to wrest that island from the govermnent to which 
it belongs. And, as before, our only reason is that 
Cuba is on this side of the Atlantic. Cuba has been a 
])art of Spain for a very long time, the most valuable 
of her diminished possessions. With Spain we are on 
terms of absolute friendship, and always have been. 
Spain! An ancient nation long celebrated in history, 
once the chief seat of that fine learning which institutes 

249 



ORATIONS AND ESSAYS 

like yours are built to foster, whence and under the 
patronage of whose enlightened queen Columbus came 
to open this continent to our ancestors. And now there 
has broken out in her province a rebellion, which, so 
far as I can learn, is a rebellion of banditti ; a rebellion 
of pillage and arson and murder, with no attempt 
at an organized government, no capital, no centre, no 
recognized head. It has nothing to stand on but crime. 
And it is proposed that we shall attack Spain, since she 
has become less jiowerfid than we are, and set uj) that 
class of people in the independent government of Cuba. 
Upon what ground is this proposal justified? Again 
it is the " Monroe Doctrine." 

Well, let us look at that for a moment. We had 
a rebellion of our own thirty years ago, a very serious 
one, of four years' duration. It was not an insurrec- 
tion of banditti, robbing and stealing and burning. 
It was the organization of a good many sovereign 
States, of a large and intelligent peo])le, with a con- 
stitution, a government, a regular army, very dis- 
tingui.shed military and civil leaders, and all that was 
necessary to national independence, except the right 
of secession. And the existence of that was a matter 
of opinion. If the South had possessed that right, it 
would have deserved to succeed, and it would have suc- 
ceeded. How should we have relished the interference 
of Spain, or of any other country, on this hemi.sphere 
or the other, to assist that rebellion, on the sole plea 
that the peojile of the Southern States claimed the 
right to set up a government for themselves? What 
a feeling pervaded this country on the mere sugges- 
tion that tlie sympathy of society in England was to 
a greater or less degree with the Confederate govern- 

250 



THE MONROE DOCTRINE 

ment! Not that the British government took a single 
step to interfere against us, but it was asserted, and 
with more or less truth, no doubt, that among a certain 
class of English people there was a feeling of sj'mpathy 
with the South. And when the Alabama, built in 
England, slipj)ed out from her control to become a 
privateer against the commerce of the Northern States, 
what was the feeling in this country' about that? It 
was never claimed that there was an3-thing more than 
neglect on the part of the British government. It 
hesitated a little too long over the evidence laid before 
it as to the character of the vessel, and linallj- sent 
down orders to stop her, about twenty-four hours too 
late. And vet we were almost ready to go to war with 
Great Britain over the depredations of that ship, and 
but for the Geneva arbitration a war might have en- 
sued. What do you supjiose would have occurred if 
Great Britain had taken up arms to assist the Southern 
rebellion? 

Now it is proposed that we should do to Spain, in 
her imminent distress, what in oiu" own similar case 
we shovdd have justly resented to the very death if it 
had Ijeen done to us bj' any nation in the world. Can 
anything be added by argument against such a pro- 
jiosal, to the refutation which the ver\' statement of it 
affords? Can it be justified to the sense of any rational 
man, upon any ground that ever was known? Here 
again we encounter the established principle of in- 
ternational law that forbids such an interference, and 
makes it an act of war, as mijustifiable as it is un- 
necessary. 

Now, my friends, there is no American, I trust, that 
ever would shrink one hair's-breadth from any war, 

251 



ORATIONS AND ESSAYS 

let its calamities and horrors and destruction be what 
they may, let its cost be what it may, if it should be 
unhappily necessarj^ to vindicate our national honor 
or to protect our national interest. When that time 
comes, we shall not be f oimd arguing about the meaning 
of the Monroe Doctrine, nor shall we pause to inquire 
by what name we shall baptize a sentiment that will 
be irrepressible because it will be just. Is it not best 
to wait for that emergency ? Is it not best to maintain 
the peace which is indispensable to our prosperity and 
welfare, until it becomes necessary to break it? And 
to refuse to intermeddle in the controversies that con- 
stantly succeed each other between the different sec- 
tions of mankind, till the time comes when it can be 
shown that we have something to do with one of them 
that requires our interference? Is not that the true 
definition of the Monroe Doctrine, if we choose to call 
by a name that does not belong to it, a very early and 
fundamental principle in the law of nations? That is 
the ground, as it seems to me, on which Americans 
should stand, in order to preserve their own peace, 
and to help preserve that of the world. And notwith- 
standing the clamor of men who want war for war's 
sake; war for its contracts, and its plunder, and its 
offices, and the spoil that can be gathered out of the 
common calamity ; war to further among the ignorant 
the chances of some party candidate; war to drive the 
country- into the curse and ruin of a dishonest cur- 
rency, for the benefit of those who have its material 
to sell; or to give a fictitious value to the bonds of 
a Cuban government that does not exist, and would 
be utterly worthless if it did— that is the ground on 
which, as I believe, the sound good sense of the Amer- 

2.S2 



THE MONROE DOCTRINE 

ican people, which comes to the front with irresist- 
ible force when the occasion is great enough to de- 
mand it, will plant itself, now and always, for the 
country's sake. 



XII 
ARGUMENT 

DELIVERED AT MONTPELIER, VERMONT, OCTOBER, 1879, 

BEFORE THE 

SUPREME COURT OF THE STATE 



EQUITABLE ESTOPPEL 



If your Honors Please,— I appear in this case 
for the Vermont and Canada Railroad Company. 
Their legal position is, in m^' judgment, the same with 
that of the first mortgage bondholders, for whom I 
appeared when this subject was formerly before j'ou. 
The interests and relations of both are harmonious, 
and the only difference between them is that in the 
succession of the securities the Vermont and Canada 
is prior and the first mortgage is subsequent. 

The case is infinitely perplexed and voluminous 
in its details; but it is not, in my apprehension, upon 
a study of those details that it is to be determined. 
If I have not misunderstood it, and I have tried not to 
misunderstand it, its ultimate disposition will depend 
upon the decision of two or three plain questions that 
seem to me to underlie the whole business. It is only 
u])on those points that I shall have occasion to detain 

[The forensic arguments of Mr. Phelps were always extempora- 
neous. Delivered for their immediate effect upon the jury or the court, 
tliey usually left no record save in the memory of interested auditors. 
On one occasion, however, a stenographic report was made, which 
was afterwards written out and printed, and is here reproduced in 
a condensed form. The case was one known as the Vermont Central 
litigation, which came before tlie Supreme Court of Vermont on what 
was then supposed to be a final hearing, at its General Term in Octo- 
ber, 1879.] 

R 2.S7 



ORATIONS AND ESSAYS 

the Court. And I shall ask your honors' attention to 
the consideration of what it is precisely that the Court 
is now called on to do, in whose behalf they are invited 
to do it, and upon what i)recise legal ground, if any, 
can the relief that is sought for be found to rest. 

To understand exactly what is now claimed, an out- 
line of the histor}^ of the transaction out of which it 
arises, brief enough to present it all in one view, is 
necessary. 

Originally the old Vermont Central Railroad Com- 
pany owned and occupied its road, which it had built. 
The Vermont and Canada owned its road, which it had 
built. It had leased that road to the Central Company 
by a lease, which is printed in this record, and which 
has engaged the attention of the Court till its provisions 
have become very familiar, the result of which was to 
give the Central the perpetual right to occupy the 
Canada so long, and so long only, as they paid the 
rent; and under that contract, and as lessees, the 
Central went into possession. Then upon default 
in the payment of the interest upon the Central's first 
mortgage, by which that mortgage became absolute 
at law, the Central Company in 1854 surrendered the 
possession of their road to the trustees of the first 
mortgage, who came into possession of the Central and 
Canada roads under a deed of surrender and under the 
provisions of the mortgage deed itself. Then sprang 
up a litigation between the Canada and the Central, 
which was a genuine litigation, founded on the claim 
of the Canada that there was an arrear of rent due 
them which was in dispute, and for which they claimed 
the remedy given in their lease. The result of the 
serious litigation on that subject was the decree of this 



EQUITABLE ESTOPPEL 

Court, of i86i, which estabHshed the vahdity of the 
lease in all respects, fixed the amount of rent that was 
then in arrear, and made a decree for its payment. 
Pending that litigation, the Chancellor had apjwinted 
the three trustees receivers, in order that they should 
hold the income of the road subject to the order of the 
Court until the cause ended ; and when the cause was 
ended the Court directed that the property remain in 
the hands of the receivers, who were ordered to apply 
its income to the payment of the decree which the Court 
had made. For three j^ears these trustees and re- 
ceivers went on in pursuance of that decree, and dis- 
charged its provisions as well as they could. 

Then various of these parties got together in 1864 
and entered into an arrangement which is called the 
compromise decree. I suppose it w^as called so because 
it was not a decree and because there was nothing what- 
ever to compromise. Because it will be borne in mind 
that at that time there was no dispute between these 
parties. There was no litigation. There was nothing 
to make any litigation out of. All the litigation there 
had been was terminated, and these gentlemen were 
in possession of the road to carry out the exjilicit decree 
of the Court, in respect to which no question ever 
arose. 

They have been called by many names — trustees, 
managers, receivers, agents, officers. It is enough for 
my purpose that they were fiduciaries. That is a 
title which covers by its definition all it is necessary 
to include. They went on under that arrangement 
after the date of this so-called compromise decree for 
fifteen years, without proposing at any time to close 
this trust or to withdraw^ from it ; on the contrary, re- 

2.S9 



ORATIONS AND ESSAYS 

sisting, and successfully resisting, even' effort that 
anybody was sagacious enough to devise to turn them 
out or to interfere with them in any way. 

Now they come into court in 1879 and say: "The 
result of our fifteen years' administration is this: 
since 1872, seven j^ears ago, we have paid no man 
a dollar upon the old original securities which we 
were jnit in there to protect and provide for. But 
since 1864, when this second edition of our trust started 
out, we have put uyion that property, or have incurred 
in its administration, a debt of about six millions of 
dollars, evidenced by all the variety and forms of 
credit that can be imposed u})on hiunan credulity 
Six millions of dollars' indebtedness is the result of 
our fifteen years' stewardship, in the last seven of 
which we have not paid a shilling to anybody' that was 
interested in any of these securities. And now we ask 
that the Court i)ut us finally and forever in possession 
of the entire property of our trust, and likewise the 
entire property of the Vermont and Canada Railroad 
Company, to be held until the administration, which 
in fifteen years has resulted only in the accumulation 
of six millions of debt, shall pay it off. " 

That is the exact proposition which is now made 
before the Court. You are called upon, on such a 
report as that of the stewardship of these gentlemen, 
to say : " Well done, good and faithful servants, 
enter you into a perpetual inheritance; we present 
j'ou with the entire property of the trust; it is yours. 
Go without day." 

And thereupon these fiduciaries, not only in spite 
of courts of justice, but b3' the aid of courts of justice, 
walk off, the proprietors of the entire trust-estate, 

260 



EQUITABLE ESTOPPEL 

having thus extinguished and wiped out all the securi- 
ties they were placed there to pay. 

It is not necessary to enij)loy adjectives to charac- 
terize such a proposition as that; the common law 
laj's small stress upon adjectives, and there are none 
that could possibly heighten the color of this plain 
statement of facts. That is actually the attitude of 
these fiduciary agents, for whom the dictionary has 
been ransacked to hunt up names. Now, if the Court 
please, if there ever was a case in the world which so 
carries its own answer with it that a Court would be 
justified in declining to hear the party in his own be- 
half, it is such a one as is now made to the Court of 
Equity, a Court of whose jurisdiction one of the foun- 
dation-stones is the enforcement between fiduciary 
agents and their principals of the very utmost good 
faith and fair dealing. 

Well, who is it that asks for it? Why, it is the same 
set of gentlemen that always appear on such occasions. 
It is these trustees who have now got themselves in- 
corporated into the Central Vermont Railroad Com- 
jiany, a corporation formed for the purpose — a sort of 
wrecking company, chartered by the Legislature — but 
the same men as before. And when you look at this 
petition all the orators are made up from that class. 
There is hardly a name that is not perfectly familiar 
to the Court ; the .same old faces api)ear here, only 
growing older as time goes on. Every time this hy- 
dra-headed controversy lifts itself in a court of justice 
these ghosts of departed litigation appear to us. 

Some of my esteemed friends apjiear here for equiji- 
nient bondholders. Equipment bondholders! Does 
any man suppo.se if an advertisement was put out in 

261 



ORATIONS AND ESSAYS 

Boston proposing that all the holders of equipment 
bonds should put up one per cent, of their security 
for the sake of prosecuting this case that any money 
would be raised? Why, it would be received with 
universal derision. The modern Athens does not 
contain anj^ Boeotians who are fools enough for that. 
It is this same set of fiduciarj- agents, and their in- 
struments and satellites, who are after this property, 
and to whom your honors are called upon to convey it. 

The case of the unjust steward, which I presume will 
be relied on (as it is the onlj' case I know of that makes 
in that direction), did not go so far. He was undoubt- 
edly a receiver; but the case was decided in his favor 
on the ground of the moderation of his demands. He 
left something for his jirincipal. When the3' came to 
the end he only demanded fift}' per cent, of the entire 
trust that was committed to him. He was contented 
with half. But the authority' of that decision does not 
go far enough to justify the taking of the whole. That 
case is distinguishable from this. 

Well, what is there to show for all this? Tliey say 
they have improved the propertj*. But they propose 
to take it, im[)rovements and all. Who gets any 
benefit of that? Knowing the}' were going to have it, 
the}' have taken care of it. This whole case reminds 
us of what was said by one of those whose words do 
not die as ours do, in respect to the condition of England 
after a certain long war. "What have we to show," 
said he, " for the slaughter of thousands and the miser}' 
of millions? Nothing but the sudden glory of con- 
tractors and agents, whose palaces arise like exha- 
lations and whose equii)ages dazzle like meteors." 

Now, one word on the prospect of the future after 

262 



EQUITABLE ESTOPPEL 

this shall have been accomplished. What does any- 
bod_y suppose would come to pass if your honors 
granted this petition and deeded this railroad in per- 
petuity to these people by the establishment of a per- 
petual receivership where there is no cause, no litiga- 
tion, and nothing for a receiver to do except to keep 
what he gets, a receivership that should last till the 
curse of chancer}' is swallowed up in the iinal curse? 

Does an\'body suppose that after thej' got it these 
debts which are now j)araded before the Court woidd 
ever be paid? How coidd they pay them? Their 
previous history has only been to make them. They 
wovdd fund them, of course, because there is no form of 
obligation they have not at their fingers' ends. They 
would promise to i)ay the interest on them, and then 
they would go down to Boston and sa,y, " See here, we 
have got rid of all the old securities ; there is no longer 
a first mortgage, no longer a Vermont and Canada; 
there is nothing but this trust and this forever. This 
being so, it will bear another loan. If we could have 
another hundred thousand dollars to stop this gap, 
and a few hundred thousand more to develop the prop- 
erty, we should have a glorious future before us." 
And all the satellites would say, Amen. Well, if they 
were fortunate enough to find a new set of creditors, 
in due time those who sit where your honors sit now 
would be called upon to apply the same rule of law 
which \'ou are asked to make; that is to say, that the 
agents, who went in for the purpose of paying off this 
present trust-debt, had ample power to charge all their 
trust-estate with whatever new debts they created, 
and therefore the propertj' should be made over to pay 
those new debts, wiping out these present ones. And 

263 



ORATIONS AND ESSAYS 

the law having been estabhshed as they claim it to be, 
such an application would be irresistible. 

The debts which they want to have j)aid are not losses 
made in running the property they are trustees of. 
It is money that was lost in outside speculations and 
enterprises, leases of other railroads. The Court will 
see that the Vermont and Canada are contending for 
all they have. All they ever had was their railroad, 
leased as it was, and their security by way of mortgage 
on the Central for their rent. When, therefore, you 
take not only their lien upon the Central for their past 
rent, but their road itself, the corpus, as I believe they 
call it (and I suppose that means corpse), you have 
taken all they have. There is not enough left of the 
Vermont and Canada to jiay for trying this case. 
They may dissolve as .soon as they please. They 
have nothing to remain together for any longer. 

Now, coming to the merits, on what precise legal 
ground can this relief that they ask for be sustained? 
They ask 3'ou to take the Canada Railroad and to 
sell or dispose of it to pay this debt. 

We owned this road in 1864, when this compromise 
arrangement was entered into. It was our projierty 
then, absolute and unencumbered. We possessed a 
lien which the Supreme Court had declared to be 
a valid and effectual one on the Central for the pay- 
ment of the rent on our road. We had it then. Now, 
when and how did it come to pass that this property is 
charged with the paj^ment of this vast subsequent 
debt? Well, you look naturally at the bill, the sui> 
plemental bill, or original bill, or whatever it is, that is 
filed in this case, to find out what the orators claim. 
You may peruse that in vain. 

264 



EQUITABLE ESTOPPEL 

The time was when a bill iii chancery, just as much 
as a declaration at law, had not only to set forth the 
facts, but to base ujKm these facts some definite, dis- 
tinct legal claim wliich could be apjireciated and passed 
upon. This bill is framed bj^ giving a sort of sketch 
of the business from beginning to end and making all 
these documents a part of the bill. Then the_v say to 
the Court, like a countryman bringing in his account 
for settlement, " If there is an3'thing coming to us 
we want it." They take care not to state in their bill 
the ground, or the precise transaction out of which 
the right is claimed to have arisen to dispose of the 
Canada Railroad for the paj'ment of this debt. You 
get no light, therefore, from that as to the ground on 
which this is to be placed. 

Then let us take the facts and see what we can find 
out. By no law known in this country can a Court of 
Equity, or any other Court, be called upon in any sort 
of proceeding to dispose of my property' for the jtay- 
ment of a debt but upon one of these two grounds — 
either it is my debt to pay, or else I have voluntarily 
subjected my property to encumbrance to jiay another 
man's debt, whereby I have virtually j)laced myself 
in the position of a surety as between him and me. 

Now, I have perused very carefully the brief of my 
friend to see if we should get any light from that (we 
did not get any from his bill) as to the precise legal 
status of this claim of theirs; and I have perused it in 
vain. You may recall my other friend's argument, 
and you won't find it there, because he puts this case 
altogether on his associate. He says, "I claim what 
my associate claims in his brief, and if your honors 
are not satisfied he will satisfy you when he comes 

2fi.s 



ORATIONS AND ESSAYS 

to argue the case at the close. I have discharged ray 
duty." And when I say to him, "On what ground do 
you claim this title to our propertj^?" wh}-, he saj^s, 
"Such a question implies a complete misunderstand- 
ing of the case. It stands upon the ground of estop- 
pel." Estoppel! A universal estoppel; an estoppel 
forever, "after the order of Melchizedek, " that had no 
beginning and never will have anj' end. That is the 
ground of his title. 

If my learned friends were so unfortunate in their 
intellectual qualifications that this was the best they 
could do, it would not be kindly or courteous to re- 
proach them with their infirmities. But everj'body 
knows that no two gentlemen anywhere are more 
capable of a clear and exact appreciation of a legal 
proposition, or more capable of stating it, than they 
are. It is because the}' thought it wiser to come and 
empty this vast rag-bag into court, and then to say 
to your honors, as a crazy man who once appealed to 
my brother Lyman, and emptied a carpet-bag full of 
miscellaneous papers at his feet, said, " A lawyer that 
cannot make a case out of that must be a fool. 

The whole case is made out of words without def- 
inition ; of terms that have no application. Define 
this phraseology and the case disappears. Exclude 
it and the case can no longer be stated. "Lien!" 
"Estoppel!" "Equitable estoppel!" "Assent!" "Ac- 
quiescence!" These are the words this case is made 
up of. But when I stop my friends and saj-, "One 
word at a time — Lien ! What do you mean bj' a 
lien?" "Oh, lien — why, a lien — is an estoppel." 
" Well, now, what exactly is an estoppel?" " Estoppel ! 
why, everybody laiows what an estoppel is ; an estop- 

266 



EgUITABLE ESTOPPEL 

pel — \vh\', it constitutes a lien and arises out of an as- 
sent." " Well, what is an assent?" "Oh, an assent, 
whj' it is acquiescence." "Well, what is acquies- 
cence?" " Why, acquiesence is the sort of an as.sent 
out of which grows an equitable estoppel. 

Let me then inquire briefl}' — for this in my appre- 
hension is the question on which the case will turn — 
is this the debt or is it not the debt of the Vermont and 
Canada Railroad Conipanj'? 

A man may become liable for a debt in three dif- 
ferent ways. It may be a debt which he himself 
directly contracts by his own dealing with the creditor. 
It may be a debt which he contracts through his au- 
thorized agent, and which becomes his debt whether 
the creditor who deals with the agent knows the {prin- 
cipal or not. Or it may be his debt when he has held 
out to the world some one as being his agent, although 
not his agent in point of fact, so that a person has dealt 
with the agent on the credit of the assumed and reputed 
principal. Well, that the Vermont and Canada did 
not directly in their own corporate capacity borrow 
this money is conceded. Nobody claims that. If 
the}' are liable for it, then it is because these managers 
were their agents, authorized to make them directly' 
liable in the first place. Now, if that was the case, if 
your honors please, these creditors might bring an 
action at law. A man who had sold a hundred cords 
of wood to this management might pass by them and 
sue the Vermont and Canada. 

And, therefore, until you find a state of facts that 
would justify j^ou, if trj'ing an action at law brought 
by such a creditor, in rendering judgment against the 
Vermont and Canada, you cannot say this is their 

267 



ORATIONS AND ESSAYS 

debt contracted through their agent. That is the 
question that is to be decided upon the construction 
of this compromise decree. 

Another thing before we leave this question. If 
the Vermont and Canada are principals, or one of the 
principals, in such an enterprise as that, in the man- 
agement of a railroad to make money, to whom do the 
profits, if there had been profits, belong? Is there 
anybody here who su[)poses that upon these papers the 
Vermont and Canada would come in for a share of 
that money after being paid their rent? The compro- 
mise decree, as they call it, provides in terms to whom 
it belongs, and that is the old Vermont Central Rail- 
road Company, who are the owners of this property 
underneath all its mortgages, and to whom all the 
profits and benefits belong after the mortgages are 
discharged. Now, it is perfectly clear that the Ver- 
mont and Canada cannot be charged as principals in 
this debt by being the principals in the agency by 
which the enterprise was conducted, imless they are 
the proprietors of the profits, if any are made. 

I shall not discu.ss the question whether that is a 
decree or not, in the judicial sense. I have discussed 
that question once before this Court, and it has been 
decided and completely set at rest. 

But suppose it is a binding contract ; let us consider 
it as a contract made by the Vermont and Canada 
Railroad, and all its terms and stipulations as binding 
upon that company, let the consequences be what they 
may. Is it such a contract as makes these " trustees " 
the agents of the Canada Railroad as the principal, 
to administer this property? Why, stop for one moment 
and regard the circumstances. Here was the Canada 

26S 



EQUITABLE ESTOPPEL 

with a clear and unquestionable title to their road, with 
a clear and unquestionable title to the Central road as 
mortgage security for the payment of their rent ; what 
on earth had they to gain bj- making themselves part- 
ners and putting in their estate, their unencumbered 
and separate estate, into the enterprise of running this 
railroad line, out of which they could not get anything 
but their rent, which they were sure to get anj-way, 
in which they might be swamped and ruined if the 
enterprise proved unfortunate? It is not conceivable 
that the management of the Canada at that time woidd 
have made such a contract as that ; it does not consist 
with the surrounding circumstances, or the situation 
of the parties, or the object in view. 

Why, then, it may be asked, did they become a party 
to it, as their claim for rent was established by their 
lease and the first decree? It is because it contains a 
provision for the extension of the Vermont and Canada 
Railroad to Highgate line and an issue of stock as an 
equivalent for it, and also a provision for the payment 
of ninety seven thousand dollars of unpaid back rent 
to the Canada. First they say, " Pay us ninety-seven 
thousand dollars and that shall be in full of back rent." 
Second, "Go on and build this branch to Highgate 
and we will put out our additional stock into your 
hands for that sum, an act of the Legislature being 
obtained to legalize it. " Third, " Pay us our incidental 
expenses," that is, the expenses of keeping up the 
company, I suppose, as they accrue. That is all they 
agreed to. The rest of it consists of provisions relating 
to other parties. 

Yet, it is said to us, you have become the operators 
of the Central Railroad. You have stepped out of 

260 



ORATIONS AND ESSAYS 

your charter-powers, because the Canada has no more 
right to run the Central Railroad under their charter 
than to run this court, until it came to pass that they 
were put into possession of it in default of the paj'- 
ment of rent; and even that right was so far doubtful 
that the Court were not able to agree in establishing 
it. It is on this contract and this lease that it is now 
said you stepped out of your charter-rights and took 
tlie field as manager of the Vermont Central Railroad 
as well as your own road, through agents whom you 
employ and who were your instruments, making your- 
self liable for all the debts that were incurred in that 
capacity; and yet, by the terms of your contract, you 
were not to have any of the j)roceeds that were earned 
except the rent, which you were entitled to anyway. 
The question on which this case, in my humble judg- 
ment, is going to turn, is whether that proposition can 
be supported ; because it will be seen, upon a very brief 
review of the rest of the case, that if the Vermont and 
Canada did not become such parties then, they never did. 
I cannot add anything to this statement. I should 
weaken the force of it, as it seems to me, if I under- 
took to strengthen it by argument. There is a con- 
tract; what is the legal effect of it? Is it a contract 
to step down and out of their corporate condition and 
to go to running the Central Railroad in violation 
of their charter (in violation of common-sense so far 
as they were concerned), or is it not? If it is, then they 
are liable for the debts of the management. They 
are liable for the debts of their agent, whether it takes 
the whole property or not. If it is not, there is an end 
to the idea that you can charge them with this debt as 
their debt. 

270 



EQUITABLE ESTOPPEL 

So far from these parties being the occupants in 
behalf of the Vermont and Canada, they were in as 
ojiponents of the Vermont and Canada, which was 
defeated by them in a struggle for the possession. 
That is the waj^ they came in. It is a most extraor- 
dinary foundation for an agency. The Canada went 
into court and, among other things, claimed posses- 
sion of the Central Railroad for arrears ; and the Court 
held that they were not entitled to it. The defendants 
prevailed, and they held possession of the road in spite 
of the Vermont and Canada. Therefore, they came in 
as adversaries of the Vermont and Canada. And thej- 
came in as men who, in despite of the Vermont and 
Canada, had a right to stay as long as they paid rent, 
and the sole power of interference which the Vermont 
and Canada had was in order to get their rent. 

Now, if the Court please, if I have succeeded in 
disembarrassing this case of the idea that these written 
contracts (if you call them contracts) furnish any 
proof of the allegation that the Canada are the real 
managers of the Central and liable for the debts of 
their agents, I respectfidly suggest that I have brought 
it to an end. Because the other alternative, the ques- 
tion whether, if it is not their debt, they have charged 
their property for its payment, becomes one of very 
easy solution. 

Now, but a few words on that point, for I think it lies 
within a very narrow compass. What is a " lien"? Or, 
as my friends from Boston (who are better authority) 
call it, a "lion"? And there is great propriety in that 
pronunciation in this case, as it is now going about 
"seeking whom it may devour." What is a lien? 
A lien is a claim upon real estate that 3'ou dare not 

271 



ORATIONS AND ESSAYS 

attempt to assert in any other words. That is what 
it is. When j^ou have got a claim upon a man's real 
estate that you dare not assert in any other language, 
lest the words you use refute j'our claim, it is a lien. 
And when you have expunged from this case, as I 
said before, about four or five words of its distinctive 
nomenclature, you have brought this controversy to 
an end, or rather it becomes like those theological con- 
troversies that never come to an end because the terms 
that the opponents use have no definite meaning; 
so they palaver against each other to the end of time 
without producing any effect. And if we could only 
expunge from this case the tenns " lien " and " estoppel," 
my friends would be dumb for want of language to 
express their ideas. There is no synonyme. There 
is no circumlocution. If you do not let them use those 
terms, you shut them up. 

Now, if the term " lien " means anything in respect 
to real estate, it is a term of comparatively modern or- 
igin, and all ideas, in my judgment, are to be received 
with great suspicion that are incapable of being ex- 
pressed in the English language. When you have to 
go to the French — not the old Norman French, which 
used to be the language of the law, but modern French 
— to get a word to express an idea, it is quite likelj^ 
that the idea is just as illegitimate as the word that is 
used to express it. A "lien" upon real estate, if you 
are using the term in its strict legal sense, is a title. 
It may be a conditional title. It may be a defeasible 
title. It is a title which, if it is not perfect, is capable 
of ripening into perfection upon the happening of cer- 
tain contingencies. All this is, of course, elementary. 

Now, these gentlemen come and saj' that we are 

272 



EQUITABLE ESTOPPEL 

cliarged with a mortgage for the debt of this manage- 
ment. Well, that is possible in law; but what is the 
evidence of it ? Where do you find it ? is it in writing ? 
No. Is it by deed or instrument? No. Where is it? 
AVhy, it is in the air, as the politicians say victory 
is just before election. It is in the air, and it comes 
as one of those miasmatic vapors which arise out of 
swampy lands and envelop everything. It is not 
based upon any contract, but they say it is deduced 
from the circiunstances. Well, you can make a con- 
tract out of circumstances, perhaps. If you have not 
got any writing, if this corporation never set its seal 
to anything, show us what they have done that resulted 
in a contract in the e3'e of the law. "Oh, we can't 
do that; but on the genei^al circumstances of the case 
a lien arises, and it arises (as I said before) by estoppel." 
Now, what is an estoppel?— (if the Court will pardon 
me for standing here as if I was delivering a lectin-e 
to a very young class of law-students, who never had 
heard of these terms before) — what is an estoppel? 
Well, it may be "of record," or it may be "en pais," 
where there is no record. An estoppel en pais arises 
where one has asserted a fact to another with the 
knowledge that the other is going to act upon that 
assertion, and then, after he has acted upon it and j)art- 
ed with his property, the first party comes into court 
and vmdertakes to den}^ as against the other, the 
truth of that statement. That is what it is, and that 
is all it is. It may be that the representation takes 
jilace by acts ; it may be in direct terms ; or it may be 
by conduct equivalent to such terms, which the other 
party has a right to understand and does understand 
as such a representation. It is nothing else than that, 
s 273 



ORATIONS AND ESSAYS 

Well, now, what is an "equitable estoppel"? I never 
heard before of an "equitable" estoppel that differs 
from a legal estoppel. What an estoppel is that is 
available in equity that cannot be available at law in a 
controversy that raises the question, I should be glad 
to know. "Equitable estoppel" means probabh' an 
estoppel that is not made out. That is the idea gener- 
ally. Estoppel! estoppel as to what? What has this 
corporation done? What has it declared? What has 
it said? If there is no contract for any such lien, if it 
is to be derived by parol, and not even by a direct dec- 
laration, but by a collateral declaration, then arises 
an estate by equitable estoppel, a term that is enough 
to bring Lord Coke out of his grave to make a fresh 
onslaught on the Courts of Chancery. 

"Why, we have assented," they say. Let us see 
what this rests upon, as seriously as we can. Here 
is a corporation. What is it that they have assented 
to ; and how did they manifest their assent ; and what 
creditor is brought forward who pretends that he loaned 
his money on the faith of it ? 

"They have assented to these people borrowing 
money." Well, what right had they to object? 

Suppose the Canada had appeared before the Court 
of Chancer^' and said, "You propose to borrow mone^". 
I object." "Well," says the Chancellor, "what have 
you got to do with it?" " Why, we have a rent charge 
on this property for the paj-ment of our rent. " " Well, 
is your rent unpaid?" "Oh no, that is all jiaid up." 
"Do you claim anj^thing besides j^our rent?" "Cer- 
tainly not." "Then, what is your objection to their 
borrowing money if they want to and can find anybody 
to lend it?" " Well, I think the course of business they 

274 



EQUITABLE ESTOPPEL 

are pursuing will render them ultimately less able to 
pay my debt." "But when they cease to pay your 
rent 3-our contract gives you a remedy, doesn't it?" 
"Oh 3^es." "Well, then, j-ou can hardl}^ expect to 
invoke the interposition of a Court of Equitj^ to prevent 
your debtor from borrowing money because you are 
afraid that in the course of business, some time or other, 
he will become unable to pay off 3'our debt when you 
have complete security if he does not pay it." How 
far would that sort of proceedings have got before my 
friend when he was manufacturing law instead of 
misstating it? What nonsense it is! They had noth- 
ing to do with giving an assent or a dissent. But 
being parties to the case, and therefore being notified 
at the time, and supposing, as everybody did, that this 
was a judicial proceeding (it is to be borne in mind that 
they were playing Court all the while), supposing this 
was a judicial proceeding, every time the managers 
wanted to borrow money the Canada either kept away, 
or said nothing, or said "We consent." Well, now, 
that thej' assented to their borrowing money is plain 
enough. That is on record. Did they assent to any 
proposition that the money should be borrowed upon 
the securitj' of their jiropertj', which it could not be 
charged with if they did not give their consent? That 
is the question. Now I commend my friend to a care- 
ful perusal of everything the Canada ever voted, or 
said, or did, in any way, from the time of the compro- 
mise decree down to 1872, which warrants for a single 
moment the presiunption, or raises the scintilla of that 
reasonable doubt on which assassins are acquitted, 
on the question whether that corporation in any way 
known to the law, or in any way not known to the law, 

275 



ORATIONS AND ESSAYS 

ever assented to the proposition that nione_v so bor- 
rowed should be a mortgage upon their separate estate 
which should make it chargeable for the payment. 

Now, if there was any such thing as creating a mort- 
gage by estoppel — a parol mortgage by estoppel — 
arising out of an assent proved by circumstances — 
at least you must show that the owner of the proper- 
ty made declarations understandingly to that effect, 
knowing what use was to be made of them, and that 
money was to be loaned on the strength of it. And 
then you must bring forward the creditor who on the 
faith of tliat statement put out his mone3^ Then you 
have got well on the waj^ towards establishing as much 
of an estoppel as is applicable to that subject. You 
will not find any such showing here. When you take 
up the case to see who represented on the part of the 
Canada, what did he represent, and what was his au- 
thority, and what part of this six millions was put out on 
the faith of his representations, you do not find a word 
on the subject. It comes back, then, simply to the silence 
of this corporation. Here was this corporation, know- 
ing that these persons, in possession, were borrowing 
money on such credit as they had, and on the credit of 
the estate that they held; and the corporation never 
objected because they had no intimation that any- 
body was going to claim that they were the debtors. 
They took no action in tlie matter and did not interfere 
with it one way or the other. Why should they? 
Down to 1872 they got their rent; and who can be more 
destitute of any right or power of interference than 
the lessor of property under a perpetual lease with no 
defeasance except u\)on default in payment of rent, and 
the rent paid up to date? 

276 



EQUITABLE ESTOPPEL 

Now, I have only to say about all this, thai it is noth- 
ing but fog. You are asked to take the property of 
this corporation and to charge it with a mortgage for 
this immense debt, that would utterly swallow it up, 
on a sort of an estoppel that you are to derive from 
their silence in res{)ect to a claim that they never had 
the slightest reason to suppose any mortal entertained, 
and which never was entertained until this business 
came to grief in 1872. All this time the trustees were 
exhausting the language of h3'perbole in publishing 
to the world that they were going on swimmingly; 
that they were making a great deal of money; that 
their net earnings were always ahead of their liabilities ; 
and that the most illimitable and magnificent future 
was not only before them but near at hand. It was 
like the Jack-o'-lantern that a man follows acro.ss a 
morass. He is alwaj's just going to come up with it, 
but he never does. And the most brilliant account of it 
that is to be found in all this literature was the last one, 
just before they failed. They disappeared from view in 
a perfect coruscation of fireworks. They announced 
that they were going on gloriouslj^ ; they were paying 
the Canada rent; they were paying the first mortgage; 
they were going to pay the second mortgage; and, 
finally, they were going to dig up from their graves 
the stockholders of the old Vermont Central and were 
going to pay even them; and with that announce- 
ment their paper went to protest and they have never 
paid a dollar to any human being since. 

Why, no man can talk about this case seriously. 
It doesn't contain the material. If this corporation 
have pledged their property to secure the debts of these 
gentlemen, you can find the place and the time and 

277 



ORATIONS AND ESSAYS 

the means by which thej' did it. And they did it, if 
absolute silence under these circumstances creates 
a charge upon their land. If that is not enough, 
what else is there? 

I need not pursue this "rake's progress" from bad 
to worse, this down-hill progress from bankruptcy to 
bankruptc3% until they reach the final slough of de- 
sjiond, from which they never will arise. I need not 
pursue the subject, because it seems to me that these 
simple and obvious suggestions must completely put 
an end to the idea of placing a lien or a title of any 
sort upon the property of the Canada for the security 
of this debt, which is not their debt. 

Now, somebody may ask, for whom were these men 
agents? They were agents of this property for its 
owners, subject to the liens that existed before they 
took it ; a trustee who takes an estate, takes it subject 
to the previous valid encvmibrances, and if j'ou trust 
that trustee on the credit of the estate, then it is the 
estate after the encumbrances are paid that you must 
look to ; and if it is not sufficient to pay j^ou that does 
not authorize a Court of Equity to rob somebody else of 
his security and pay j^ou in full. What does an ad- 
ministrator take when he takes an estate of a man 
who leaves land that is subject to a mortgage? Sup- 
pose he undertakes to go into business and carry it on? 
He declines to make himself personally liable, and he is 
trusted on the credit of the estate. Then comes in a 
creditor and says, " I want mj' pay." " Whom did you 
trust?" "I trusted the administrator, as such. He 
wouldn't be personally liable." "Very well, then, 
all the assets in the administrator's hands, which he 
has received, shall be applied to 3'our pav." "Well, 

278 



EQUITABLE ESTOPPEL 

but there are no assets. He lias used them all up." 
"Well, what is the Court going to do about that?" 
"But," saj's the creditor, "if you can't pay nie in 
any other way, turn out this mortgagee, who had a 
mortgage long before this administrator came in; 
turn him out. There is a lien. He never said any- 
thing; all the time this administrator has been carrj'- 
ing on the estate he never said a single word. He got 
his interest once in six months, and this seems to be 
all he cared about it. Why, this is estoppel. This 
is e(iuitable estoppel!" I think if you were to disinter 
old Plowden (and he was the driest man that ever put 
his thoughts on paper), and set him to talking about 
this question of real property, he couldn't talk about 
it seriously. 

As to the position of these creditors, it would be 
gratifying to the Court, undoubtedly, if they could pa}' 
everybodj' out of the property. That cannot be done. 
If you pay these subsequent creditors j'ou pay them bj^ 
destroj'ing the prior estate; if you enforce the prior 
estate, you can pay only a moiety of these claims. 
The hardship of the one is quite as great as the hard- 
ship of the other. 

I believe I have -said all that I desire to saj'. Of 
course I could pursue this subject by travelling through 
all its ramifications. But, after all, it would only be a 
reiteration, by application to the successive steps and 
proceedings in this case, of the same idea. And there- 
fore, as I said in the outset, it seems to me that this case 
settles down to the determination of these two questions : 
Is this the debt of the Canada? That is to say, did 
they undertake the running of the Central so that they 
became principals? If it is not the debt of the Canada, 

279 



ORATIONS AND ESSAYS 

has that corporation in any legal or effectual way 
mortgaged its property for the security of that debt? 

When these two questions are answered, as they 
must be, in the negative, all claim of a charge against 
this property must come to an end. 



ESSAYS 



I 

THE CONSTITUTION OF THE 
UNITED STATES 

(WRITTEN IN 1888) 



THE CONSTITUTION OF THE 
UNITED STATES 



The year that has lately closed has terminated the 
first century since the adoption of the Constitution 
of the United States. In the reckoning of history 
the period is not a long one. In the accelerated pace 
of modern times it has been long enough to form that 
instrument into a complete sj'stem of government, 
and to test pretty thoroughly its eflicacy and value. 
In its origin it was a striking and, in many respects, 
an original experiment. In its republican form it 
was substantially without precedent. It was the prod- 
uct of conflicting opinion, j^roposed in doubt, ratified 
with hesitation. The States which adopted it were 
small and struggling, exhausted and impoverished 
bj'^ a long war, with no central government worth the 
name, no credit, no finance, no certain outlook for the 
future. The hundred years of its history have seen 
the civilization, from the Atlantic to the Pacific, of 
the continent on the margin of which its administra- 
tion began; the increase of its subjects from three 
millions to nearly sixty millions ; the rise and maturity 
under its protection of a great and powerful nation, 
whose growth has been phenomenal, and whose future 
lies beyond the field of prediction. As its institutions 

2Ss 



ORATIONS AND ESSAYS 

have gradually taken shape, and as one after another 
of the dangers that menaced them has been overcome, 
it is natural that they should have attracted, in an 
increasing degree, the attention of mankind, and es- 
peciall}'^ of the English-speaking race. The American 
nation is the first-born child of Great Britain, the first 
and greatest fruit of the characteristic power of the 
Anglo-Saxons for colonization and for going by the 
sea. The connection between the two countries grows 
constantly larger and more intimate. It is clearer 
day by day that the future of America, for better or 
worse, is to be the inheritance, not of a nation only, 
but of the race to which the nation belongs. 

But it is probable that very few even among the best- 
instructed Englislimen have a clear or accurate con- 
ception of the government of the United States, as it 
actually exists. Some features of it are conspicuous, 
and some qualities obvious. He who runs may read 
them. The real working of its institutions, the exact 
relations of its system of dual sovereignty, apparently 
complicated, in reality simple, are less easily apparent. 
Nor has a stranger the means of readily acquainting 
himself with the subject. The text of the Constitution, 
considering its scope, is singularly brief. Its language 
is terse and comprehensive. It enunciates general 
principles in the fewest words, and deals with details 
as little as possible. Its perusal is easy — even attrac- 
tive — for its simplicity and dignity of expression, but 
leaves it obvious to the reader that its practical efficiency 
must depend altogether upon the construction that is 
given to its phraseology and the manner in which 
its provisions are carried into effect by legi-slation. 
An acquaintance with these results, as they have 

2<S6 



THE UNITED STATES CONSTITUTION 

from time to time taken place, must be sought through 
many judicial decisions, Congressional debates, and 
legislative enactments; or, at least, by study of the 
elaborate treatises in which they have been brought 
together by commentators, and which are written for the 
lawyer rather than for the general reader. A concise 
and accurate outline of the Constitution of the United 
States, and of the system of Federal government of 
which it is the foundation and the supreme law, may 
answer many inquiries, and may, perhaps, be found 
useful to those interested in political science, as well 
as to those who care to Iviiow more about that country. 
Government is only one factor in the life of a nation, 
but it is the most important. An acquaintance with 
it is a large advance towards a knowledge of its 
people. 

It is necessary to a correct understanding of the 
Constitution of the United States that some attention 
should be given to the national conditions which pre- 
ceded its origin. At the close of the American Revolu- 
tion, in 1783, the thirteen Briti.sh colonies which, under 
a loose and hasty association for that purpose, had 
brought the war to a successful result, had become 
independent States, and had adopted separate con- 
stitutions of their own. Contiguous to each other, 
though extended along a very wide reach of coast froin 
New Hampsliire to Georgia, and inhabited by the same 
race, there was but little connection between them, 
except the bond of a common .sympatic in a common 
cause. The attempt at a Union, formed during the 
progress of the war, under what were called the Articles 
of Confederation, was rather an association than a 
government. Its obligation was well de.scribed as 

2<S7 



ORATIONS AND ESSAYS 

"a rope of sand." The central organization had no 
control over the States which formed it, no power to 
raise revenue, nor to assert any permanent authority. 
Trial had shown it to be destitute of the elements of 
self-preservation or of permanence, and had made it 
clear on all hands that it must be abandoned. It is 
unnecessary to recur to it further, since nothing came 
of it at last but the experience that pointed the way 
to a better system. 

But that a imion of some sort must be formed, and 
a government based upon it, was an obvious necessit}'. 
Neither of the States was strong enough to maintain 
its independence. Conflicting interests were likely to 
involve them in perpetual controversy among them- 
selves. The vast territory behind them, when it should 
become occupied, was likely to develop into a multitude 
of small and independent republics, or perhaps prov- 
inces under foreign governments, and unavoidably' to 
give rise to constant disputes between the States in 
regard to the possession of lands, in which some of 
them claimed rights indicated by vague and inde- 
terminate boundaries, and others, without special 
title, would, nevertheless, have strong claims to share. 
There was no substantial hesitation, therefore, among 
the people of the States or their leaders touching the 
necessity of an alliance and of a national govern- 
ment; but the gravest difference of opinion naturally 
arose as to the terms upon which they should be con- 
structed. Jealous of their dearly purchased inde- 
pendence, the States were reluctant to part with a 
sovereignty which it was much easier to discard than 
to recall. It was under these circumstances, and in 
this condition of public sentiment, that a convention 

288 



THE UNITED STATES CONSTITUTION 

was finalh^ summoned bj- Congress to meet at Phila- 
delphia, in February, 1787, to revise the Articles of 
Confederation and to report to Congress and the several 
States such amendments as should be adequate to the 
exigencies of government and the preservation of the 
Union. To the meeting of this body came as dele- 
gates the most distinguished men in all the States 
except one, \\hich was not represented. It was pre- 
sided over by Washington, himself the most ardent 
advocate of imion, and was an assembly of uncommon 
dignity and ability. Its discussions were protracted 
and earnest. A wide diversity of ojnnion ajipeared, 
principally between those disposed to conservative 
views and those inclined towards democracy. There 
were also to be reconciled what were thought to be 
tlie conflicting interests of the different States. The 
convention finally abandoned altogether the Articles 
of Confederation, as hopeless of amendment, and in- 
stead of them on the 17th of September, 1787, adojjted 
by a considerable majority the original Constitution 
substantially as it now stands, and submitted it to 
the people of the several States for ratification, under 
a proviso that the assent of nine States shoidd be 
sufficient to render it binding between the ratifying 
States. Each State called a convention of its own 
to consider the proposal, in which prolonged discus- 
sions took place. Tliere was more or less opposition 
in many quarters, and upon many grounds. But it 
was finally ratified and formally adopted by the thir- 
teen States, at different times. Meanwhile, after 
eleven States had assented to it. on the 3otli of Aj^ril, 
1789, the government it established was organized. 
The two remaining States ratified the Constitution 
T 289 



ORATIONS AND ESSAYS 

and came into the Union — one in November, 1789, the 
other in May, 1790. 

The State of Vermont, in which settlements had been 
begun before the Revokition commenced, upon land 
titles acquired under the New Hampshire grants from 
the Crown, had fought through the war on the Amer- 
ican side without becoming a member of the Union 
formed by the Articles of Confederation. At the close 
of the war land titles were attempted to be asserted 
against those of the settlers, under the grant to the 
Duke of York, by which a large part of New York 
was held. The boundaries of both grants were so 
loosely defined that each covered a part of what was 
embraced in the other. The Vermonters resisted these 
claims, set at defiance the legal process from the New 
York courts, and in defence of their lands maintained 
the independence of their State, under a constitution 
of their own, until 1791, when, their titles having been 
conceded, they applied for admission and were received 
into the Union. 

All the territory now under the jurisdiction of the 
United States government, and not embraced within 
these fourteen States, including that afterwards de- 
rived from France, from Spain, and from Mexico, 
became subject to the exclusive control of the Federal 
government. As the various parts of it were occupied 
or acquired, territorial governments were from time 
to time organized by Congress and administered under 
the national authority, until such time as these Terri- 
tories, or successive portions of them, were admitted 
by Congress into the Union as States, on the same 
footing, imder the Constitution, with the original 
States. Texas alone was admitted as a State when it 

290 



THE UNITED STATES CONSTITUTION 

was first annexed to the United States, never having 
been made a Territory. There are now tliirty-eight 
States in the Union, and seven organized Territories, 
which will in time, as their population becomes suf- 
ficient, be admitted as States. Each State has a con- 
stitution and a complete system of government of its 
own. 

From this meagre outline of a most interesting chap- 
ter in history it will be perceived that the States which 
originally adopted the Constitution were independent 
and separate, and entered the Union voluntarily, on a 
footing of entire equality. There was no subordinate 
and no superior, nor any conquest or compulsion of one 
by the others. And the cardinal idea upon which 
the Constitution is founded is that every State which 
becomes subject to it is independent of the other States, 
and retains its full sovereignty, except so far as by the 
express terms of the Constitution, or by necessary 
implication, certain powers are relinquished by the 
States, or conferred upon the Federal government. 
In determining, therefore, in which jurisdiction any 
governmental power resides, the inquiry is whether 
it has been parted with by the States, under the pro- 
visions of the Constitution, and, if so, whether it has 
been granted to the national government. There 
are certain powers that are prohibited to the States, 
but which that government has not acquired. 

The most serious question under the Constitution 
that has ever arisen was that which involved the nature 
of the compact ujjon which it was founded — whether 
the Union thus formed could be dissolved by some of 
the States that were parties to it, and they be allowed to 
withdraw without the consent of the others. No di.scus- 

291 



ORATIONS AND ESSAYS 

sioii of a constitutional question in America was ever 
so prolonged, so excited, and so bitter as this. It 
culminated finally in the Civil War of 1861, and then 
received its final settlement. It was contended on 
the part of the Southern States, in which slaverj' 
existed when the Constitution was adopted, that the 
Union was virtually a partnership of States, volun- 
tarily entered into, and depending for its existence 
upon the continued consent of the parties; that those 
who made the compact could dissolve it ; and that no 
power was conferred ui)on the Federal govermnent 
by the Constitution to compel States to remain under 
its authority, or to continue an alliance from which 
they found it to their interest to withdraw. This view 
was urged with great earnestness by Southern states- 
men, under the leadership of Mr. Calhoun. In the 
earlier stages of the discussion it was plausible, and 
not without force, and Southern sentiment was gener- 
ally, though not universally, in its favor. But in the 
great debate on the subject in the United States Senate, 
in 1830, the answer to this construction of the Con- 
stitution was brought forward by Mr. Webster with 
extraordinary and convincing power. No speech in 
America was ever so widely read, so striking in its 
immediate effect, so lasting in its ultimate results. 
From that time there has been no difference in opinion 
among the Northern people as to the question involved. 
It was shown that the compact of the Constitution was 
of a far higher and more enduring character than a 
mere dis.soluble partnership existing upon sufferance ; 
that it was a national government, permanent and per- 
petual in its nature, not contracted for by the States, 
but ordained by the people ; that while the assent to it 

292 



THE UNITED STATES CONSTITUTION 

in the first instance was voluntary, and was expressed 
through the medium of the State governments, it was 
an assent that, once given and acted upon, could not 
be recalled ; from which no power of recession was re- 
served, or could exist, consistently with the object of 
the contract, or the nature of the government; and 
that the States, though retaining their independence 
and sovereignty in many particulars, had j^arted with 
their right to a political existence separate from the 
government they had created. 

When this question finally came to the arbitrament 
of arms, there was no hesitation in the minds of the 
Northern people touching the merits of the quarrel, 
or the indispensable necessity of maintaining it. Nor 
did the theory of the right of secession command imi- 
versal acceptance in the Southern States. Four of 
them declined to join the Confederacy, and remained 
on the Union side through the war. Since the war, 
this question is at an end. It is not likely ever to re- 
cur. With the disappearance of slavery, no reason for 
asserting a right of secession remains. No respectable 
vote could be obtained in any Southern State to-day 
in favor of a dissolution of the Union. 

The Constitution of the United States reproduces, 
under a different form of government, and under dif- 
ferent conditions, all the principles of English liberty 
and the safeguards of English law. These are the 
foundations upon which it rests, and the model upon 
which it is constructed. It affords the highest proof 
that those principles are neither local nor national in 
their character, nor dependent upon the form of govern- 
ment under which they exist, so long as it is in its 
nature a free government. Sovereignt}^ is distributed, 

293 



ORATIONS AND ESSAYS 

as in England, among three principal and independent 
departments — the executive, the legislative, and the 
judicial. 

I. The President is the head of the government, 
the chief executive officer, and the commander-in- 
chief of the army and the navy. He is required to be 
of American birth, to be not less than tliirty-five years 
of age, and a resident of the United States for fourteen 
years when elected. He holds office for four years, 
and is constitutionally eligible to repeated re-elections. 
No President, however, has been re-elected more than 
once; and political tradition, as well as general sen- 
timent, is opposed to a second re-election. 

Both the President and Vice-President are elected 
by a college of electors, chosen in each State in num- 
bers corresponding to the number of Senators and Rep- 
resentatives in Congress to which the State is en- 
titled, and in such manner as the State may by law 
provide, hi South Carolina they have always been 
chosen by the Legislature, and no popular election 
for presidential electors has ever been held there, hi 
the other States they are elected by the people. The 
electors so chosen are required to meet in January fol- 
lowing the election, in their respective States, and to 
cast their votes for President and Vice-President. The 
votes are transmitted to the seat of government, and 
are opened and coimted by the president of the Senate, 
in the presence of the Senate and House of Represent- 
atives. The persons having the greatest number of 
votes are declared elected, provided they receive a 
majority of all the electoral votes, and they hold office 
from the 4tli day of Marcli next ensuing. If no person 
has a majority of votes for the office of President, the 

294 



THE UNITED STATES CONSTITUTION 

House of Representatives then elects the President 
from the persons — not exceeding three — who received 
the highest number. But in this election each State 
has but one vote, which is cast by the majority of its 
Representatives. If no person has received a majority 
of electoral votes for the office of Vice-President, the 
Senate elects that officer from the two persons having 
the highest number. If the House fails to elect a 
President before the 4th of March next following, the 
Vice-President becomes the President. 

It was intended by the Constitution that the President 
and the Vice-President should be chosen by the elec- 
toral college, acting independently and in the exercise 
of their own judgment ; but recent elections have pro- 
ceeded upon the nomination in the different States, 
as electors, of persons pledged to the support of par- 
ticular candidates for President and Vice-President, 
who have been proposed in partj- conventions. The 
election becomes, therefore, to all intents and purposes, 
an election of these officers by the iieo|)le, the electors 
chosen being a mere medium for registering the popu- 
lar vote, without any discretion of their own. 

The Constitution contemplated the election of no 
Federal officer whatever b\' popular vote, except mem- 
bers of the House of Representatives in Congress, and, 
in States where it should be so provided, members of 
the electoral college. That office, originallj' a very 
important one, has become insignificant, and only 
formal in its duties. 

The President appoints his own Cabinet, subject 
to confirmation by the Senate, which in the case of a 
Cabinet officer is never refused. They hold office 
during his pleasure, and irrespective of the majority 

295 



ORATIONS AND ESSAYS 

in either House, or any vote it may adopt, and cannot 
be members of either House. The Cabinet consists 
of a Secretary of State (Foreign Affairs), of the Treas- 
ury, of War, of the Navy, and of the Interior, an At- 
torney-General, and a Postmaster-General. Each con- 
ducts, subject to the general direction of the President, 
liis respective dejiartment, that of the Attorney-General 
being the Department of Justice. 

The principal powers of the President, ajiart from 
his general conduct and supervision of the administra- 
tion of the government, are four — the veto, the appoint- 
ment to public office, the making of treaties with foreign 
nations, and the pardoning power for offences against 
the Federal laws. And he is required, at the opening 
of each session of Congress, to transmit to that body 
a message informing them of the condition of public 
affairs, and recommending any subjects to their at- 
tention which seem to him to require it. 

The exercise of the veto power is altogether in the 
President's discretion. All acts that pass Congress 
are sent to him for signature, and, if he approves, are 
signed accordingly. He may, however, within ten 
days (Sundays excepted) after the reception of anj' 
such act, return it without approval to the House in 
which it originated, with his objections in writing, 
which are required to be entered on the journal of the 
House. If he retains the act bej'ond the ten days 
without signing or returning it disapproved, it becomes 
a law without his signature. If returned disapproved, 
it may be again passed and become a law without his 
approval, if a majority of two-thirds of both Houses 
can be obtained in its favor. The vote for that 
purpose must be taken by yea and naj', and the 

296 



THE UNITED STATES CONSTITUTION 

names of the voters for and against recorded in tlie 
journal. 

Treaties with foreign nations, when coni])leted and 
signed, are transmitted by the President to the Senate 
with his recommendation, and must be ratified by a 
vote of two-thirds of that body in order to take effect. 
There is no restriction upon the power of the President 
in making treaties, except the imphed one that nothing 
can be done inider it which changes the Constitution 
or robs a department of the government or any of the 
States of its constitutional authority. Legislation 
by Congress, however, may often be necessary to carry 
the provisions of a treaty into effect. 

The power of appointment to oflice, and of removal 
therefrom, is the heaviest tax which is imposed by the 
Constitution ujron the attention of the President. 
All diplomatic, judicial, executive, and administrative 
officers of the United States government, including 
those of the army and navy, are appointed by the 
President and confirmed by the Senate, except a class 
of minor civil officers, who are authorized by law to 
be ajipointed by the heads of departments, or by other 
executive or judicial authority, and do not require 
confirmation. Vacancies in presidential appointments 
occurring in the recess of the Senate may be filled 
by commissions expiring at the end of its next session. 
Officers of the army and navy are usually appointed 
from the graduates of the military and naval academies 
respectively, promotion in both services being exclusive- 
ly by seniority, except that general officers and officers 
in certain branches of the staff are appointed by the 
President by selection. 

The Vice-President holds office for four j-ears, and 

297 



ORATIONS AND ESSAYS 

is president of the Senate, and, except in case of the 
death or disabiUty of the President, or of the failure 
to elect a President, has no other duty to {)erform. 
On the death or disability of the President, or if no 
President be elected, the Vice-President becomes the 
President. What constitutes "disability" witliin the 
meaning of the Constitution, or how it shall be declared 
to exist, there has arisen no occasion to decide. It 
may be assumed to be a permanent disability, or what 
is regarded as such, and would probably be treated as 
witliin the determination of Congress. It seems clear 
that if such a disability be once declared, and the 
Vice-President thereupon becomes President, a re- 
covery by the President from the disability would not 
restore him to office. 

2. The legislative power of the United States govern- 
ment is vested in Congress, which is composed of two 
Houses, the Senate and the House of Representatives. 
No act can become a law until it has passed both. 
The Senate consists of two members for each State in 
the Union, irrespective of its size or population. They 
are elected by the Legislatures of the respective States, 
hold office for six j-ears, and are eligible for re-election 
indefinitely. To be eligible as Senator a person must 
be thirty years of age, a citizen of the United States 
for nine years, and an inhabitant of the State from 
which he is elected. The Senate has also very im- 
portant powers aside from the general duties of legis- 
lation. Besides the ratification of treaties, and the 
confirmation of appointments to office already men- 
tioned, all impeachments of officers of the United States 
government who are subject to that process must be 
tried before it (speciall}- sworn for that purpose), a 

298 



THE UNITED STATES CONSTITUTION 

vote of two-thirds being necessary for a conviction. 
In case of the impeachment of the President, the Chief 
Justice of the Supreme Court of the United States pre- 
sides at the trial. 

The House of Representatives has no other duty 
than that of general legislation, in wliich the con- 
currence of the Senate is requisite, except in the election 
of President, before referred to, and except that all bills 
for raising revenue must originate in the House of 
Representatives, though subject to amendment by the 
Senate. They have also the sole power to present 
articles of imjjeachment. 

To be eligible as a member of the House of Repre- 
sentatives a person must be twenty-five years of age, 
seven years a citizen of the United States, and an in- 
habitant of the State from which he is chosen. 

The Representatives are apportioned to the several 
States upon the basis of population, except that each 
State is entitled to at least one member. They are 
chosen for two years. A new census is taken once 
in ten years, and a reapportionment of the represen- 
tation is made accordingly. 

Members of both Houses are paid a compensation 
for their .services of $5000 per annum and a travelling 
allowance, and are precluded from holding any office 
imder the United States government while members. 
Nor can any Senator or Representative be appointed, 
during the period for which he is elected, to any civil 
office under the authority of the United States, which 
is created or its emoluments increased during such time. 
They are privileged from arrest, except for treason, 
felony, or breach of the peace ; and for speech or debate 
in either House cannot be questioned in any other place. 

299 



ORATIONS AND ESSAYS 

The legislative powers tliat may be exercised by 
Congress are those only that are specially conferred 
upon it by the terms or necessary implication of the 
Constitution. All others are reserved to the States, 
unless expressly prohibited to them in the Constitu- 
tion. Those assigned to Congress comprehend gen- 
erall}^ all powers necessary for the Federal Legislature 
to possess, to enable the national government to be 
maintained and carried on, and the duties and functions 
appropriate to it to be discharged. The line is so 
drawn as to give to the central authority all that is 
requisite, and nothing more. Whatever is within its 
sphere, the States are prohibited from interfering with. 
What is left to the States, the Federal government is 
excluded from. The dual government thus created 
can, therefore, never be a conflicting one. And the 
Federal courts, and in the last resort the Supreme Court 
of the United States, as will be pointed out hereafter, 
afford a tribunal in which any disputed question of 
jurisdiction finds its immediate solution. 

Speaking comprehensivelj', the powers of legislation 
conferred upon Congress may be thus summarized : to 
collect revenue upon a luiiform system for the general 
welfare and common defence; to borrow money; to 
regulate foreign and interstate commerce; to coin 
money and establish weights and measures; to main- 
tain the post-office; to establish naturalization laws 
and a uniform system of bankruptcy; to constitute 
Federal judicial tribunals inferior to the Supreme 
Court; to grant patents and copyrights; to declare 
war, grant letters of marque and reprisal, and make 
rules concerning captures ; to maintain an army and 
a navy; to provide for calling into service the militia 

300 



THE UNITED STATES CONSTITUTION 

of the States, when necessary to execute the laws of 
the United States, to suppress insurrection, or to repel 
invasion, and to regulate, officer, and govern the 
militia when in such service; to punish piracy, felony 
on the high seas, offences against the law of nations, 
and against the statutes of the United States; to ex- 
ercise exclusive jurisdiction over territory acquired 
for the seat of government, or for fortifications, navy- 
yards, or necessary public buildings of the Federal 
government; to organize and govern Territories and 
to admit them into the Union as States; and to make 
all laws necessary and proper to carry into execution 
these and other powers vested by the Constitution in 
the government of the United States. Congress has 
also authority, as will be more fully stated hereafter, 
to propose amendments to the Constitution. 

The powers of Congress being confmed to tho.se which 
are thus specially conferred, it has no general legis- 
lative capacity outside of them, except so far as Tnay 
be necessary to enforce the Federal authority. What 
any branch of the government is empowered by the 
Constitution to do, Congress may adopt the requisite 
legislation to enable it to carr}' out. The authority 
of Congress under this head has been liberally con- 
strued, and it is held to be its own judge as to the means 
proper to be emploj'ed for that purpose. 

But the Constitution also contains certain special 
restrictions ujion the power of Congress, in respect to 
matters that might otherwise be within its scope. 
It is provided that the writ of habeas corpus shall not 
be suspended unless in cases of rebellion or invasion ; 
that no bill of attainder or ex post facto law shall be 
passed ; that no capitation or other direct tax shall be 

301 



ORATIONS AND ESSAYS 

laid unless in proportion to the census provided to be 
taken ; that no tax or duty be laid on exports from any 
State ; that no preference shall be given by commercial 
or revenue regulations to the ports of one State over 
those of another, nor vessels bound to or from one State 
be required to enter, clear, or pay duties in another; 
that no title of nobility shall be granted ; that no laws 
shall be made respecting an establishment of religion 
or prohibiting the free exercise thereof, or abridging 
the freedom of the press; that the right of the people 
peaceably to assemble and to petition the government 
for a redress of grievances, to keep and bear arms, 
to be secure in their persons, houses, papers, and effects 
against unreasonable searches and seizures, shall not 
be infringed; that no person shall be deprived of life, 
liberty, or property without due process of law, nor 
private property be taken for public use without just 
compensation. 

Of these restrictions, the most important of all is 
that in respect to the deprivation of life, liberty, or 
property. By one of the amendments of the Constitu- 
tion, noticed hereafter, this provision is extended in 
the same words to governmental action by the States. 
It applies, as many of the other restrictions above 
recited do, to all the departments both of State and 
Federal governments, as well as to the legislative. It 
is contained in the few words above quoted, and there 
is no other allusion to the subject in the Constitution. 
Much discussion and many judicial decisions have 
taken place in regard to their true meaning and ap- 
plication. What is to be understood by the word 
" property " as here employed, what is a " deprivation " 
of it, and especially what is "due process of law," 

302 



THE UNITED STATES CONSTITUTION 

are questions that have been much and very carefully 
considered. The language has been held to be as 
comprehensive as it is concise. A broad and liberal 
and at the same time a just and consistent construction 
has been given to it in favor and protection of the 
rights of the subject, and of a just limitation upon the 
powers of government. It would be beyond the limits 
of this sketch to indicate even the outline of the in- 
teresting process through which this significant clause 
of the Constitution has acquired a settled and well- 
understood meaning, not likelj' ever again to be chal- 
lenged. It is enough to say that it results in this: 
no person in the United States can be deprived, by any 
act or authority of government, either of life, of liberty, 
or of any lawful possession which the law recognizes 
as the subject of private property, unless upon the 
judgment or decree of a court having competent juris- 
diction of the subject-matter, and of the parties affected, 
and acting in the regular course of judicial procedure. 
In other words, no property can be by governmental 
action taken from any person in possession of it until 
it has been adjudged by the proper tribunal that it 
does not lawfully belong to him, and does belong to 
the party to whom it is adjudged. 

To this proposition there are but two exceptions — 
(l) where property is sold for the payment of a tax 
legally assessed ; (2) where real estate is taken for public 
use, in the exercise by the government of the power 
of eminent domain. In the latter case, the u.se for 
which it is taken must be a public use in the true sense 
of the word — that is, an actual use by the general public. 
It cannot be taken from one man and given to another, 
upon the ground that the jniblic is to be incidentally 



ORATIONS AND ESSAYS 

or indirectly benefited. And the use by the pubhc 
must also be a necessary use, though this term receives 
a liberal and reasonable construction. The necessity 
must either be declared by the legislature that au- 
thorizes the taking, or it must be determined by a 
judicial or other tribunal authorized to decide the 
question. And in all cases where property is taken 
for public use it must be paid for before it can be oc- 
cupied. If the parties cannot agree upon the amount, 
it must be judicially ascertained. 

The protection thus afforded to private property is 
not theoretical merely, but actual. It will be enforced 
by the courts of justice in all cases, at the instance of 
any party aggrieved. Any act of Congress, or proceed- 
ing of the government, which is found to be in con- 
flict with these or any provisions of the Constitution, 
will be held void by the courts, so far as it so conflicts. 
A remedy is given for every invasion of private rights 
that may take place under the authority of such an 
act or proceeding. And on a question whether it con- 
travenes the Constitution, an appeal lies to the Su- 
preme Court of the United States, which in these cases 
is the ultimate tribunal. 

The Constitution also contains important restric- 
tions upon the legislative power of the States. So 
far as powers have been conferred upon the Federal 
government, thej'- are, as a general rule, regarded as 
relinquished, and can no more be exercised by the 
States. In some minor matters it has been held that 
a State may legislate upon a subject which is within 
the control of the national authority, so long as that 
control is not actually assumed, and subject to the 
power of Congress, by taking action, to supersede the 

304 



THE UNITED STATES CONSTITUTION 

State legislation. This is a questionable construction, 
and not likely to be extended. 

But aside from the implied abrogation of the right 
to exercise powers that have been conferred upon the 
national government, it is expressly provided that no 
State shall enter into any treaty, alliance, or confedera- 
tion ; grant letters of marque and reprisal ; coin money ; 
emit bills of credit ; make anything but gold and silver 
coin a tender in payment of debts; pass any bill of 
attainder, ex post facto law, or law impairing the obliga- 
tion of contracts; or grant any title of nobility-; that 
no State shall, without the consent of Congress, lay 
any imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its 
inspection laws ; lay any duty of tonnage ; keep troops 
or ships of war in time of peace ; enter into any agree- 
ment or compact with another State or foreign power ; 
or engage in war unless actually invaded, or in such 
imminent danger as will not admit of delay; that 
no State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States ; nor deprive any person of life, liberty, 
or property without due process of law; nor deny to 
any person within its jurisdiction the equal protec- 
tion of the laws ; nor deny or abridge to citizens of the 
United States the right to vote, on account of race, 
color, or previous condition of servitude; nor assume 
or pay any debt or obligation incurred in aid of rebel- 
lion or insurrection against the United States, or any 
claims for the loss or emancipation of any slave. 

It will be perceived that these restrictions upon the 
power of the State governments are principally of three 
classes : those which exclude the States from inter- 
U 305 



ORATIONS AND ESSAYS 

ference with subjects which are placed, and must 
necessarily be placed, within the control of the Federal 
authority; those which provide for the privileges of 
the citizens of one State in other States; and those 
which have reference to the protection of personal 
rights. Of the latter class, the clause in respect to 
the deprivation of life, liberty, and property only ex- 
tends to the action of the State governments the same 
safeguards raised by the Constitution against injustice 
by the Federal government, and already referred to. 
The provision which prohibits a State from passing 
any law impairing the obligation of contracts is one 
which applies to the State legislatures onlj', and has 
proved of very great importance both to the maintenance 
of the Union and to the preservation of personal rights. 
It has been the subject of much judicial discussion 
and many decisions, from which it has derived a 
settled meaning. It would be interesting to review 
its history, but only the result of it can here be stated. 
No contract, whether executed or executory, express 
or implied, derived from State charter or from private 
agreement, can be affected by any subsequent legisla- 
tion, either in any material feature of its obligation, 
or by depriving its parties of a remedy for its violation. 
3. The judicial power of the United States govern- 
ment is vested by the Constitution in one Supreme 
Court, and in such inferior courts as Congress maj' 
from time to time establish. The number of the judges 
of the Supreme Court is also fixed by Congress. It 
consists at this time of a Chief Justice and eight as- 
sociate justices. They are appointed by the President, 
confirmed by the Senate, hold office during good be- 
havior, and receive a compensation which cannot be 

306 



THE UNITED STATES CONSTITUTION 

diminished during their term of office. On attaining 
the age of seventy years, a justice of this court is en- 
titled (if he has served ten years) to retire upon the same 
compensation during his hfe which he has received 
while on the bench. The court sits at Washington, 
from October till l\Iaj^ with short intermediate recesses. 

For the organization of the inferior Federal courts, 
the United States are divided into circuits, in number 
equal to the number of the justices of the Supreme 
Court. To each of these circuits a justice of that 
court is assigned, and has usually a residence within 
it. Li each circuit a circuit judge is appointed. The 
several circuits are again divided into districts, in 
proportion to the amount of judicial business. Each 
State constitutes at least one district, and in the larger 
States there are several. In each district there is 
appointed a district judge. The circuit and district 
judges are appointed in the same manner, and are 
subject to the same provisions as to tenure of office 
and retirement as apply to the justices of the Supreme 
Court. The courts held by these judges are circuit 
courts and district courts, sitting for the districts in 
which they are held. The circuit courts may be held 
by a justice of the Supreme Court, by the circuit judge 
of the circuit, or by a district judge within his own 
district, or in any other district of the same circuit to 
which he may be temporarily assigned, or by any of 
these judges sitting together. The district court can 
only be held by the district judge in his own district. 

The jurisdiction of the Federal courts is extended 
by the Constitution to all cases in law and equity under 
the Constitution, the laws of the United States, or 
treaties made under their authority ; to all cases affect- 



ORATIONS AND ESSAYS 

ing ambassadors, other public ministers, and con- 
suls; to all cases of admiralty and maritime jurisdic- 
tion ; to controversies to which the United States shall 
be a party ; to controversies between two or more States, 
between a State and citizens of another State, between 
citizens of different States, between citizens of the 
same State claiming lands under grants of different 
States, and between a State or citizens thereof, and 
foreign States, citizens, or subjects. 

The result is that the Federal courts have a general 
jurisdiction in two classes of cases, the first depending 
on the subject-matter of the controversy, the second 
upon the character or residence of parties. Under the 
first class are comprehended all cases where the cause 
of action arises under the Constitution or laws of the 
United States, such as actions for infringements of 
patents or copyrights, all cases in admiralty, all cases 
in which the United States is a party, and all con- 
troversies between States. Under the second class 
are embraced all cases in law and equity in which 
an ambassador, minister, consul, or alien is a party; 
where the parties are citizens of different States, or of 
the same State claiming lands under grants of different 
States, or where a State brings action against a foreign 
State, or against the citizens of another State or of a 
foreign State. Certain public officers of the United 
States are also authorized to cause to be removed into 
the Federal courts actions brought against them for 
acts done in their official capacity. 

In cases within the first class, the jurisdiction of the 
Federal courts is exclusive; in those of the second, it is 
concurrent with the jurisdiction of the State courts. 
In the latter class of cases, the action may be brought 

308 



THE UNITED STATES CONSTITUTION 

in the Federal courts in the first instance by the party 
entitled to sue there, or having been brought in the 
State courts, it may be seasonably removed b}' such a 
party into the Federal courts. 

In the exercise of the jurisdiction belonging to the 
Federal courts, the district courts have original juris- 
diction in admiralty, in bankruptcy proceedings under 
the United States laws, and in various revenue and 
other cases over which jurisdiction is specially con- 
ferred upon them by act of Congress; and an appeal 
lies from the district court to the circuit court sitting 
in the same district. 

The circuit courts, besides this appellate jurisdic- 
tion from the district courts, have original and general 
jurisdiction in all cases in law and equity coming 
within either of the two classes above described. They 
have also jurisdiction in all criminal ca.ses where the 
ofTence is crime on the high seas or against foreign 
nations, or is made criminal by statutes of the United 
States having reference to subjects within the control 
of the national government. From tlie circuit courts 
an appeal or writ of error lies to the Supreme Court 
of the United States, in all civil cases in which the 
amount in controversy is $5000 exclusive of costs, 
and in all cases where a question material to the de- 
cision arises under the Constitution, laws, or treaties of 
the United States. There is no appeal to the Supreme 
Court in criminal cases, though a Jiaheas carpus may 
be applied for in that court where a person has been 
convicted and .sentenced for crime in a circuit or State 
court, and is in confinement, if it is claimed that on 
his trial or sentence any provision of the Constitution, 
laws, or treaties of the United States have been violated. 

309 



ORATIONS AND ESSAYS 

The courts will not, however, consider any other ques- 
tion upon such an application, nor take cognizance 
of any other error. 

The Supreme Court has original jurisdiction in 
cases affecting ambassadors, other public ministers, 
and consuls, and in those wherein a State is a party. 
It also hears applications for mandamus and habeas 
corpus in certain cases. In all other cases its jurisdic- 
tion is appellate, and is subject to the regulation of 
Congress. It has been uniformly held by the Supreme 
Court that the jurisdiction authorized by the Constitu- 
tion is permissive only, and requires to be made ef- 
fectual by appropriate legislation. Congress has, 
however, from the beginning provided for the exercise 
by the Federal courts of all the jurisdiction contem- 
plated by the Constitution, and there has never been 
any disposition to attempt to abridge it. 

The Supreme Court, aside from the limited original 
jurisdiction before mentioned, and the large appellate 
jurisdiction from the various circuit courts, has another 
important power upon appeal or writ of error, in certain 
cases in the State courts. Whenever in an action 
in a State court a right is claimed on either side arising 
under the Constitution or laws of the United States, 
or any treaty with a foreign government, and the right 
so claimed is denied upon appeal to the highest court 
in the State, the cause, so far as that question is con- 
cerned, may be carried to the Supreme Court of the 
United States for revision. No other point will, how- 
ever, be considered in that court in such case. And if 
the question does not distinctly arise, or is not necessary 
to be decided in reaching a proper judgment, the appeal 
will not be entertained. It will thus be seen that 

310 



THE UNITED STATES CONSTITUTION 

no person claiming the protection of any provision of 
the Constitution of the United States, or of any of its 
laws or treaties, in any tribunal in the country, whether 
State or Federal, can be deprived of it short of a de- 
cision of the Supreme Court, if he chooses to invoke 
its judgment upon the question; while if a State court 
allows him the right he contends for, no appeal to the 
Supreme Court to reverse such a decision lies against 
him. 

In the Territories organized under acts of Congress 
but not yet admitted as States, the judicial power is 
exercised b}' Federal courts, the judges of which are 
appointed by the President for a fixed term, and con- 
firmed by the Senate. From the judgment of these 
courts an appeal or writ of error to the Supreme Court 
of the United States lies in most cases. In some of 
the Territories, inferior local courts are also authorized 
by the acts of organization. In the District of Colum- 
bia, in which the Federal seat of government is located, 
and over which permanent and comjilete jurisdiction 
has been ceded to the United States by the States from 
which that District was taken, there is a system of 
Federal courts having general civil and criminal 
jurisdiction, regulated by acts of Congress. From 
their decision in most cases, except criminal cases, 
an ajjpeal to the Supreme Court is allowed. 

Applicable to all Federal courts in the United States, 
however constituted and wherever sitting, are certain 
general provisions in the Constitutioti, designed for 
the protection of accused persons against injustice, 
and for the insuring of fair trials in all cases. 

It is declared that no person shall be held to answer 
for a capital or infamous crime but on the indictment 

311 



ORATIONS AND ESSAYS 

of a grand jury, except in military or naval service; 
nor for the same offence be twice put in jeopardj^ nor be 
compelled in any criminal case to be a witness against 
liimself; that in all criminal prosecutions the accused 
shall enjoy the right to a speedy and public trial by an 
impartial jury of the district (previously ascertained 
by law) wherein the crime shall have been committed, 
to be informed of the nature and cause of the accvisa- 
tion, to be confronted with the witnesses against him, 
to have compulsory process for obtaining witnesses 
in his favor, and the assistance of counsel; that ex- 
cessive bail shall not be required, excessive fines im- 
posed, nor cruel and unusual jninishments inflicted. 

The Constitution also provides that in suits at com- 
mon law, where the value in controversy exceeds 
twenty dollars, the right of trial by jury shall be pre- 
served and that no fact tried by a jury shall be other- 
wise re-examined than according to the rules of the 
common law. This provision has reference only to 
proceedings in the Federal courts ; but a similar clause 
exists in all the State constitutions, applicable to all 
State courts. 

Upon the subject of the judicial powers of the Federal 
government it only remains to add that in every State 
in the Union there is a complete system of courts for 
the administration of civil and criminal justice, in- 
cluding courts of highest appeal. These courts are 
independent of the courts of other States, and equally 
independent of the Federal courts, except in the i>ar- 
ticulars already mentioned — the right of certain parties 
to remove causes from the State to the Federal courts, 
and the right of appeal from the State courts to the 
United States Supreme Court when a right claimed 

.112 



THE UNITED STATES CONSTITUTION 

under the Constitution or laws of the United States 
has been denied. And the jurisdiction of the State 
courts is universal, except in the limited class of cases 
already referred to. over which that of the Federal 
courts is exclusive. 

In all courts in the United States, whether Federal 
or State (except the State courts of Louisiana), the 
common law of England is administered, so far as it is 
applicable to existing institutions, and consistent with 
the Constitutions of the United States and of the several 
States, and modified by the provisions of the acts of 
Congress and of the State legislatures, within the 
sphere of their respective authority'. In Louisiana 
alone the civil law prevails, a tradition of its Spanish 
and French history. The common law as it existed 
at the time the Constitution was formed was adopted 
by the States, or has been assumed by their courts and 
legislatures. The Federal courts, however, have no 
common law criminal jurisdiction, and in civil cases 
administer the law i^revailing in the States to which 
transactions before them are subject. 

4. In respect to citizenship, there are no citizens of 
the United States except the citizens of the States 
and Territories. The right to vote is regulated al- 
together by the State laws, excejit that, as has been 
seen, it cannot be denied on account of race, color, 
or previous servitude, and except also that the natural- 
ization of foreigners is regulated by the Federal law, 
so that it is imiform throughout. A vote is generally 
given to every man of good character, twenty-one 
years of age, of American birth or duly naturalized, 
who has resided in the State for the period required 
by its laws. In some States he must be a tax-payer. 



ORATIONS AND ESSAYS 

and in some States he must be able to read and write, 
in order to have a vote. 

The Constitution provides that citizens of each State 
shall be entitled to all the privileges and immunities 
of the several States; that full faith and credit shall 
be given in each State to the public acts, records, and 
judicial proceedings of every other State; and that 
Congress may prescribe the manner in which they 
shall be proved. The result of these provisions, as 
they have been given effect, is that the citizen of any 
State or Territory has all the {)rivileges in the other 
States or Territories that he would have as a citizen 
there, except the right to vote and to hold office; and 
he can acquire full citizensliip in any State or Territory 
by simply taking up his residence within it, and re- 
maining the length of time required bj' its laws ; though 
he cannot be a citizen of more than one State or Terri- 
tory at the same time. 

In every State, also, the legislative acts, the judicial 
proceedings, and the records of other States are rec- 
ognized, when proved in the manner required by the 
act of Congress, and their correctness and validity are 
presumed. While neither the statutes nor the judg- 
ments of a State have any effect except upon tliose 
subject to its jurisdiction, as between or against those 
who are so affected, they will be enforced by the tri- 
bunals of any other State. Execution cannot be 
issued in one State upon a judgment rendered in an- 
other, nor can a judicial order extend beyond the limits 
of the jurisdiction in which it is made ; but a judgment 
legally rendered can be enforced by action upon it 
in any other State where the defendant or his property 
may be found; and in such action the correctness of 

314 



THE UNITED STATES CONSTITUTION 

the judgment will not be allowed to be controverted, 
except on the single question whether the court in 
wliich it was recovered had jurisdiction of the subject- 
matter and of the parties. 

The Constitution also requires that any person 
charged with crime in one State, and escaping into 
another, shall be delivered up by the government of 
the latter upon demand of the executive of the State 
in which the offence was committed, to be returned 
there for trial. 

5. The Constitution makes provision for its own 
amendment. Two-thirds of both Houses of Congress 
may propose amendments, or, on the application of 
the legislatures of twcvthirds of the States, may call a 
convention for that purpose. Any amendment pro- 
posed by Congress, or b}^ a convention so called, is 
submitted to the States for ratification. If ratified 
by votes of the legislatures of three-fourths of the 
States, or by conventions assembled in three-fourths 
of the States (according as Congress may direct), it 
becomes a part of the Constitution of the United States. 
But no amendment can be proposed which deprives a 
State, without its consent, of its equal representation 
in the Senate. 

It will be observed that an amendment of the Con- 
stitution cannot be easih' or hastily obtained. Two- 
thirds of both Houses of Congress and three-fourths 
of the States must concur in demanding it, and perhaps 
also an intermediate convention called by two-thirds 
of Congress. 

While fifteen amendments of the Constitution have 
taken place within the first century of its history, 
these can only be justly reckoned as four. The first 

315 



ORATIONS AND ESSAYS 

ten were adopted at one time, and soon after the rati- 
fication of the Constitution itself, and really constitute 
but one. They embrace what is known as the Bill of 
Rights, the various provisions of which have been 
noticed in the foregoing pages, in their proper connec- 
tion. They declare, in substance, that certain enumer- 
ated liberties of the people and certain ancient muni- 
ments of liberty shall not be taken away; that the 
enumeration in the Constitution of certain rights shall 
not be construed to deny or disparage others retained 
by the people ; and that the powers not delegated to the 
United States by the Constitution, or proliibited by it 
to the States, are reserved to the States respectively, 
or to the people The provisions touching personal 
rights were omitted from the original Constitution, 
because they were not thought necessary to be inserted, 
though strongly urged. It was deemed that they were 
sufficiently implied and understood in any system of 
free government to be recognized by all courts sitting 
under it, and that a re-enactment of them might ap- 
pear to imply that they were derived from the Con- 
stitution, or from the authority of the government, 
instead of being natural rights antecedent to it, and 
safeguards that had become an indefeasible part of 
the inherited common law. While this was undoubted- 
ly true in theory, experience has shown the wisdom 
of the amendments, by which the protection of these 
cardinal rights was expressly provided for, and placed 
beyond cavil. 

The other clauses of these amendments, concerning 
rights not specially referred to, and powers not dele- 
gated to the Federal government nor prohibited to 
the States, while quite unobjectionable, do not seem 

3t6 



THE UNITED STATES CONSTITUTION 

to be necessary. They only mar the syininetry of 
a document which contains no other superfluous words. 
It needs no assertion to show that the Constitution 
confers no powers not expressed or by necessity im- 
plied, and that neither States nor people had parted, 
in adopting it, with any rights which are not therein 
surrendered. 

The eleventh amendment simply provides that a 
State shall not be sued in the Federal courts by the 
citizen of another State, or of a foreign country. It 
was adopted in 1794, and is in conformity with the 
general principles of sovereignty. 

The twelfth amendment changes the method of elect- 
ing President and Vice-President, mainly in one par- 
ticular, unnecessary to be here referred to. 

The last three amendments, very important in their 
nature, were proposed at the same time, at the close 
of the Civil War in 1865, and were declared adopted by 
the requisite number of States— the thirteenth in 1865, 
the fourteenth in 1868, and the fifteenth in 1870. They 
embody certain important results of the war. They 
prohibit slavery or involuntary servitude e.xcept for 
crime in the United States ; provide that all persons 
born or naturalized in the United States shall be citi- 
zens; and contain other provisions for the protection 
of personal, civil, and political rights, and having 
reference to debts incurred in the jn-osecution of the 
war, \\ hicli have been already mentioned. 

The Constitution of the United States consists, as 
originally framed, of a short preamble and seven ar- 
ticles, containing twenty-two sections. To these have 
been added, by way of amendment, fifteen articles, 

317 



ORATIONS AND ESSAYS 

embracing t\vent3'-one sections. Many an act of 
Parliament or of Congress, on a single and often sub- 
ordinate topic, is much longer than the entire Con- 
stitution, with all the amendments that a century 
has produced. Yet a document of this brevity has 
proved sufficient to establish and maintain during 
that time a system of government which has proved 
adequate to all the requirements and all the exigencies 
of a great nation, and inider which has been enjoyed 
an unexampled prosperity. No provision has been 
found wanting or incompetent, no language either 
uncertain or incomplete. 

Quite apart from the political sj^stem which is thus 
created, the instrument itself is manifestly of no or- 
dinary character as a medium of expression. It may 
be doubted whether it has any parallel among the 
forms of law. It is worth while to glance briefly at 
the qualities that distinguish it in this respect, and 
which are not so familiar in more recent times as to 
have fallen into contempt. They may be found, upon 
observation, to be principally three : that it is con- 
fined to the proper office of a constitution, the ordain- 
ing of the fundamental law ; that it prescribes only 
general and comprehensive rules, not seeking to an- 
ticipate their application ; that its language is singular- 
ly perspicuous, and its forms of expression simple and 
direct, with no word to spare, and none lacking to the 
sense. 

The line that separates constitutional law from the 
province of legislation is not always clearly observed, 
and is perhaps only material to be observed where 
written constitutions prevail. The one deals with the 
unchangeable, the other with the fluctuating; the one 

318 



THE UNITED STATES CONSTITUTION 

chiefly with principles, the other altogether with 
measures. The value of a constitution is in its per- 
manence; the efficiency of statutes, in their capacity 
for modification, as the progress of society or business 
requires. Legislation is largely experimental; of the 
necessity of constitutional provisions there should be 
no room for doubt. If these different provinces be 
confounded, if the Constitution undertakes to exert the 
legislativ^e [rawer, instead of merely defining the nec- 
essary limits within which it may be exercised, con- 
fusion and embarrassment must result. Yet it is 
the tendency of partisans and zealots not to rest con- 
tent with legislating, in dealing with matters that are 
the proper subjects of legislation, but to strive to in- 
corporate their views — usually extreme views — into 
the fundamental law, so as to e.xclude those who come 
after them from making laws for themselves. It will 
be found upon examination of the American Con- 
stitution that, aside from the machinery of the govern- 
ment it establishes, and in respect to which it contem- 
plates the possible necessity of amendment, there is 
no rule and no restriction which it prescribes that is 
not permanently essential to the maintenance of the 
principles on which it is based, to the protection of 
undeniable rights, or to the support of the national 
authority; and that no legislative power is excluded, 
unless it be one that cannot safely be exerted at all, 
nor any included of which the exerci.se is fettered. 

The Constitution is equally' fortunate in the breadth 
and comprehensiveness of the rules it lays down. 
The difference between a general rule, which gives 
effect to a principle, and a series of special provisions 
that attempt to apply it beforehand to all future vicissi- 

319 



ORATIONS AND ESSAYS 

tudes, is the difference between the legislation that 
accompanies and assists the progress of human affairs 
and that which opposes and retards it. The general 
rule is elastic, and opens a held for wise and just ad- 
ministration in its employment. It is capable of the 
extension, restriction, and modification which its prin- 
ciple requires, in dealing with the infinite variety of 
circumstances necessary to be encountered. It pos- 
sesses a force that reaches them all, and at the same 
time admits of the exceptions which prove its pro- 
priety. Special enactments, on the other hand, which 
try by elaboration of detail to anticipate the unfore- 
seen, and to guard against the unlvnown, often tie 
up the hands of justice. They are apt to apply 
where they should not apply, and to fail where they 
are needed; they proceed upon the assumption that 
the future must perpetually repeat the past, and can 
produce no circumstances not known in advance to 
the law-giver. The bane of law is the multiplication 
of statutes, and the bane of statutes is the multiplica- 
tion of words. There is no more striking illustration 
in the history of jurisprudence of the wisdom of gen- 
eral rules than is afforded by the fabric of wise and 
beneficent law and government that has arisen upon 
the foinidation of those contained in the Constitution 
of the United States. 

The felicity of the language in which this instrument 
is expressed is best shown by the remarkable fact that, 
in all the legislative and judicial criticism to which 
almost every line of it has been subjected, and in all 
the multiplicity of cases to which its terms have had 
to be applied, there is but a single instance (and that 
of questionable necessity) where anj' amendment of 

.^20 



THE UNITED STATES CONSTITUTION 

its words has been found desirable, or has even been 
proposed. In that clause which prescribes the limit 
of the judicial power it was claimed, and by a majority 
of the Suj)reme Court held, that the language justified 
the inference that a State might be made a defendant 
in a Federal court at the suit of a citizen of another 
State. The attribute of sovereignty, that a govern- 
ment will not allow itself to be summoned before a 
court of justice by a citizen, was too well understood 
by the eminent lawyers who drafted the Constitution, 
and the convention that adopted it was nuich too 
jealous of infringing upon the indejiendence of the 
States, to leave it to be supposed that it was meant to 
create such a jurisdiction. And as soon as it was 
determined that this construction might, nevertheless, 
be given to the language of the clause in question, 
an amendment was agreed to, by general consent, 
declaring that the judicial power should not be con- 
strued to extend to any suit prosecuted against one of 
the States by citizens of another State, or of a foreign 
State. 

So remarkable a document naturally excites interest 
in the question of its authorship ; but it is one hardlj' 
capable of an answer. The final draft, made after 
all the articles had been separately agreed upon, was 
written bj^ Gouverneur Morris, of New York, a states- 
man and a scholar. It is not understood, however, that 
much of the language was his own, because in the 
course of the protracted discussion that had occurred 
every clause had taken shape, and all terms had been 
considered and settled. The Constitution was not 
the work of any one man, or committee of men, nor 
were the views of any one man adopted in all respects 
X 321 



ORATIONS AND ESSAYS 

ill its provisions. It was the result of the joint labors 
of the convention, in which many of the members 
took conspicuous part. Without the paramount and 
earnest efforts of Washington, it is doubtful whether 
any conclusion at all would have been reached by the 
convention, or, if reached, would have been ratified 
by the States. But it is not known that he contributed 
especially towards the framing of the Constitution, 
and it is certain that he did not take much part in the 
debates. Undoubtedly the leading mind in the con- 
vention in that work was James Madison, of Virginia. 
He was a statesman of large and enlightened views, 
a profound student of the principles of government, 
and of great experience in legislative life. Afterwards 
Secretary of State in the Cabinet of President Jefferson, 
he succeeded him, and became President of the United 
States for eight j^ears. His hand and voice were 
more largelj^ felt than those of any other member of 
the convention in the framework of the Constitution, 
and in the discussion in regard to it, though to some 
of its provisions his views were opposed. Another 
most conspicuous and distinguished figure was Alex- 
ander Hamilton, of New York, who as a lawyer was 
at the head of the New York Bar, and as a statesman 
111 the front rank of his time. He became Secretary 
of the Treasury under President Washington, and 
handled the exhausted finances of the new govern- 
ment with extraordinary skill and success. It was of 
him that Webster said, " He touched the corpse of the 
public credit, and it rose to its feet. " Only his untimely 
death prevented his occupying a very prominent place 
in subsequent American politics. It is known that 
Hamilton's opinion was in favor of giving to the Presi- 

322 



THE UNITED STATES CONSTITUTION 

dent and to the Senate a life tenure of office. His 
liighlj' conservative views had a sensible influence 
in the formation of the Constitution, and though as 
finally completed it was still too democratic to satisfy 
him, he became an ardent advocate for its ratification, 
hi connection with Madison and John Jay, he wrote 
the series of essays upon the Constitution and its 
principles, known as The Federalist, which is still 
one of the most valuable commentaries upon political 
scietice. Of these essay's he was the author of fifty-one, 
Madison of twenty-nine, and Jay of five. They had 
a great effect upon the i)ublic opinion of the time. 
In the convention of the State of New York, called to 
determine whether that State would adopt the Con- 
stitution, Hamilton was a leader, and more efficient 
than any one else in bringing about a favorable result. 
Other men there were in the convention that framed 
the Constitution, strong, resolute, capacious. There 
seems to appear in great emergencies a force, unfelt 
at other times, that might be called the attraction of 
public necessity, which brings to the surface a quality 
of men who otherwise would have remained unseen 
— children of the gods, who in human affairs work 
so rarely but so well. There were no political parties 
in that fortunate morning ; the jargon of faction was 
not heard in the convention, and the curse of partisan 
warfare did not attend its labors. The records of its 
work are comparatively meagre; only flashes of its 
spirit are visible to us ; the voices are those of the gray 
dawn before the full light has fallen upon the speakers. 
But from all that is or can be known about them at this 
day, there remains no manner of doubt of the patriotism, 
the disinterestedness and singleness of purpose, as 

323 



ORATIONS AND ESSAYS 

well as the great mastery of constitutional principles, 
with which all the members of that body wrought to- 
gether, from February to September, in the effort to 
lay the foundations of a beneficent and permanent 
government. Perhaps it is because they thought so 
strongly, and felt so deeply, that their language be- 
came so clear, so simple, so direct. The dignity and 
earnestness of their employment doubtless gave a 
character to their words. 

When at last, after hope had often failed, and effort 
had more than once appeared to be in vain, the great 
work somehow got itself done, and the new Constitu- 
tion arose before them, symmetrical and complete, 
out of the long-troubled sea, all became sensible of its 
power and its promise. Argument ceased, opposition 
subsided, and it hardly needed the final appeal of 
Washington to obtain for it the unanimous approval 
of the States represented. "The members," says 
Bancroft, " were awe-struck at the result of their coun- 
cils; the Constitution was a nobler work than they 
had believed it possible to devise." 

But whatever the original excellence of the Con- 
stitution as a written document, the system of govern- 
ment that has arisen upon its foundations is far less 
a creation than a growth. This is true of all govern- 
ments and all S3^stems of law, administrative or judicial, 
and especially of those found among English-speaking 
peojjle. It has been a growth not away from nor out- 
side of the provisions of the fundamental law, but their 
natural result. It is in the capacity for such an ex- 
pansion that the highest excellence of the Constitution 
lies. It became what it is through the construction 
and application that were given to its provisions. 

324 



THE UNITED STATES CONSTITUTION 

The wisdom tliat framed it would have been thrown 
away but for an equal wisdom to adapt the framework 
to its use. It was as fortunate in one as in the other, 
for again, in this critical period, the man and the time 
appeared together. 

John Marshall, of Virginia, was appointed Chief 
Justice of the Supreme Court of the United States in 
1 80 1, and remained in that office until he died in 1835. 
His predecessors had held the place for onlj^ verj^ 
brief periods, and but few questions under the Con- 
stitution had ari.sen for their decision. The field 
opened to Marshall and his associates on the bench, 
in the construction and adaptation of that instrument, 
was, therefore, nearly untrodden. In the thirty-five 
years during which he presided, the Constitution, in its 
most important features, and in respect to its controlling 
principles and rules of construction, took permanent 
shape. 

It was said of Marshall by William Pinkney that 
" he was born to be the Chief Justice of whatever coim- 
try his lot might happen to be cast in." In temper 
judicial, in character dignified and blameless, in per- 
ception unerring, in reasoning luminous, in the prin- 
ciples of law a master, his judgments, sustained by 
an invincible logic, and expressed with a nervous 
simplicity that left no word to be misunderstood, ai> 
proached the nature of demonstration. Imbued with 
the spirit of all precedent, he rarely cited anj^; rich in 
the learning of jurisprudence, he used it to illustrate 
principles, not to obscure them. Englishmen, less 
familiar with American history than with the long 
line of illustrious names that have adorned the judg- 
ment-seat of their country, may be surprised to be 

325 



ORATIONS AND ESSAYS 

told that John Marshall, in the qualifications of a 
great magistrate, as well as in the magnitude and 
dignit\' of his judicial work, was the peer of the best 
among them all. 

His associates on the bench were also men of a high 
order. Three of them had been members of the con- 
vention that adopted the Constitution; another, for a 
considerable part of the time, was Judge Story, one of 
the most learned of American lawyers. But it stands 
upon their testimony that, in constitutional law, Mar- 
shall was the master-spirit. Only once while he was 
on the bench was he overruled upon a question of that 
sort, and then bj' a bare majority of his associates. 
And it is now plain to be seen that in that instance the 
strength of the argument was on his side. 

The problems presented to the Supreme Court were 
altogether new in a tribunal of law. Courts are usually 
concerned with the administration of individual justice. 
They are not called upon to settle j^rinciples of govern- 
ment, to adjust the relations of States, or to set bounds 
to the exertion of political authority. The proceed- 
ings of courts sitting under the common law had been 
jjreviouslj' based upon a sj'stem of government they 
had little share in forming, and upon the will of Par- 
liament as the supreme law and the final arbiter of 
the Constitution. There were, therefore, no i^recedents 
by which tliis Court could be guided ; they had to make 
precedents, not to follow them. The intent and scope 
of the Constitution had to be deduced b}- general prin- 
ciples of construction, in view of its great purposes and 
far-reaching consequences. 

The questions were not only novel, but difficult. 
Many of them had given rise to great difference of 

326 



THE UNITED STATES CONSTITUTION 

opinion among lawyers, judges, and statesmen, and 
the Court was not always able to reach a unanimous 
conclusion in deciding them. This paper would extend 
into a treatise were it attempted to review, or even to 
state, the series of decisions, in wliich one doubt after 
another, arising upon the Constitution, was settled 
and disposed of. Questions affecting and determining 
the powers of the Federal government, and of its various 
dei)artments, the authoritv of the State governments, 
and their relation to that of tlie nation, the extent and 
quality of the protection afforded by the Constitution 
to personal and political rights, the limits of the judicial 
jurisdiction, and many others of minor significance 
in comparison, but still most material, found a solution 
in these judgments of the Supreme Court, that has 
remained, and will remain, the jjermanent and undis- 
puted law of the land. And thus was infused into the 
Constitution the breath of life. 

The effect of these decisions upon public sentiment, 
as from time to time they took place, was striking and 
conclusive. However warmly the subjects had been 
debated, however great had been the diversity of opin- 
ion, although in some instances the controversies had 
assumed a political character, and had entered into 
the warfare of parties, the judgments of the Court, 
when they came to be pronounced, always deliberate, 
passionless, unpartisan, and just, commanded com- 
plete and immediate confidence. It was generally 
seen that they were right ; it was always felt that they 
must be respected. 

Time, the supreme test of the value of human exer- 
tion, has demonstrated the excellence of tliis early 
and striking chapter of judicial history. What was 

327 



ORATIONS AND ESSAYS 

doubtful in the outset is now made clear by the light 
of experience. No competent tribunal could at the 
present day be induced to abandon or change the 
principles of constitutional jurisprudence that were 
established in that first half-centur}', if they were now 
all open to be reconsidered. 

Looking back upon these discussions with the aid 
of what has since taken place, it is easy to see how 
different might have been the result, in the hands of a 
tribunal less wise and far-sighted. It was the forma- 
tive period of the Constitution, in which it was deter- 
mined whether it should perish, or whether it should 
endure. If its administration had commenced upon 
narrower or less sagacious principles of interpretation, 
its history would have been brief. Next to the 3'ears 
of the Revolution, this was the most critical time in the 
life of the young republic, and perhaps even more 
critical than they were. Had the Revolution been 
defeated, another would have succeeded; but had this 
effort at union failed, as its i)redecessor did, a third 
would hardly have been attempted. A better or more 
hopeful Constitution could not have been constructed. 
America would jirobably have been divided into as 
many States as Ein-oi)e, imder what forms of govern- 
ment, and with what subsequent history, is not to 
be conjectured. 

It is b}' no means to be inferred from these obser- 
vations that it is meant to be implied that the con- 
struction of the Constitution was terminated by Mar- 
shall's Court. Its great leading principles were then 
principally determined, and the lines on which its 
subsequent administration proceeded were in a large 
measure laid down. In a field so novel everything 

328 



THE UNITED STATES CONSTITUTION 

depended on the beginning. But so long as tlie Con- 
stitution remains the supreme law its construction 
will not terminate. The time will never arrive, while 
the Constitution lasts, in which the Court will cease 
to be occujned in ascertaining the ajiplication of its 
provisions to new cases and new subjects, in the ever- 
changing emergencies of luunan affairs. Manv most 
important and interesting questions have arisen im- 
der it, and have been decided, from time to time, and 
through all the time since Marshall's day. The Civil 
War, especially, was fruitful of controversies involv- 
ing constitutional discussion, on points of great conse- 
quence, which no previous occasion had brought into 
consideration. During the ver\' last term completed 
by the Court four or five cases were determined which 
turned upon constitutional questions. 

In dealing with this delicate subject the Court ex- 
presses no obiter opinions. It will never decide such 
a question under any circumstances, unless it is ab- 
solutely necessary to a determination of the case before 
it. The unconstitutionality of the act or proceeding 
in disj)ute must clearly appear, or it will not be held 
void; a doubt, however grave, is not enough. It 
must be shown to infringe some exjiress {provision of 
the Constitution, not merely its general spirit. And 
when only a part of an act is found to be an infringe- 
ment, the remainder will be valid. A decision once 
reached, even though by a divided Court, will not be 
dejiarted from. In only one instance in the history 
of the Court has the decision of a constitutional ques- 
tion been reconsidered and a different result arrived 
at. And that was ujion a rehearing of the same case 
in wliich the former judgment was given, the Court 

329 



ORATIONS AND ESSAYS 

being on both arguments divided in opinion. It is 
another rule in respect to these cases that thej' will 
never be heard without the presence of all the members 
of the Court. And the judgment is alwa3's announced 
in a written opinion, which is placed upon record, and 
reported under the supervision of the Court. 

So much has been said on the subject of judicial 
construction that it should be further pointed out that 
its application to the Constitution is not universal. 
The Supreme Court has no jurisdiction to decide ques- 
tions of that sort, except when they arise in actions 
at law or in equity wliich come before it in actual 
litigation. Nor will it ever allow fictitious or collusive 
cases to be made up for that purpose. It is only, there- 
fore, when the act or the legislation which is claimed 
to be in contravention of the Constitution reaches and 
actually affects some individual or corporate right, 
capable of being vindicated in a court of justice, that 
the question can come before the Supreme Court for 
consideration. Legislative or executive proceedings 
which are in their nature political, which, however they 
may affect the general welfare and the public interest, 
do not come in contact with personal rights, or reach 
one individual in the commvuiity more than another, 
cannot be the subject of litigation. In respect to such 
subjects the action of the executive or legislative 
departments within their respective spheres is final, 
and the judicial power has nothing to do with it but to 
accept the result. Such are questions of the existence 
of war or peace, the de facto government of a foreign 
country, or the extent of its jurisdiction, the authority 
of ambassadors or ministers from other countries, the 
admission or division of States, and others of the 



THE UNITED STATES CONSTITUTION 

same general character. Many topics of this sort, 
involving grave constitutional inquiries, have been 
discussed and dealt with in Congress upon memorable 
occasions. The public polic}- of the government has 
been thus directed and controlled. It has been with 
the relation of the States and their citizens to the 
Federal government under the Constitution that the 
Supreme Court has been chiefly concerned. 

The leading and most material points of variance 
between the British and the American constitutions 
are few in number, though important in substance. 
The most conspicuous are the least significant; the 
most significant, the least conspicuous. The difference 
between the hereditary and the elective executive and 
upper house is the most obvious to the general eye, 
but is, after all, principally a difference in the form and 
machinery of government. The monarch reigns for 
life, but does not govern; the President governs for 
four or eight years, but does not reign. The systems 
are not interchangeable; each is best where it is; 
neither coimtry would tolerate a substitution of the 
other system for its own. 

The fundamental distinctions between the two 
governments are to be found in the existence in the 
United States of a written instead of an imwritten 
Constitution; of a division of sovereignty between 
the Federal government and the States ; of a peculiar 
combination of checks and counterpoises among the 
various departments of government; and in the pre- 
ponderance given to the judicial power as the inter- 
preter of the Constitution and for the protection of 
personal rights. 



ORATIONS AND ESSAYS 

The written Constitution was a necessity', because 
when it was framed no traditional constitution existed 
in that country, and a new one had to be created. But 
this was hard for men of Enghsh blood to realize. So 
strong in the minds of many of them was the idea of 
inherited constitutional rights that many of the pro- 
visions for the protection of personal liberty were at 
first omitted from the instrument under the supposi- 
tion that an assertion of them was unnecessary, and 
might even be jirejudicial. It was only upon subse- 
quent consideration that it was fully perceived that the 
Constitution, if written, must be the whole Constitution, 
and must therefore be made complete in itself ; that the 
rights of Englishmen under the British government 
would not follow them into another land, after they 
had thrown off their allegiance and become independ- 
ent, unless in some effectual way incorporated into 
the new institutions which they established. The 
written Constitution has certain advantages of its 
own, as has likewise the vmwritten. Both, as has been 
before remarked, are the result of growth : the one from 
the seed, naturally; the other from the young tree, 
transplanted into a different soil, trained in another 
form, and stimulated by the fresh atmosphere of a 
new world. 

The division of sovereignty between the national 
government and those of the States was also a neces- 
sity. In a country so large, composed of jjrovinces 
so numerous, and local interests so diverse, it would 
have been quite impossible that all the functions of 
civil authority should have been discharged by one 
organization. The adjustment of such a division of 
power, so as to preserve as far as possible the inde- 



THE UNITED STATES CONSTITUTION 

pendence and local jurisdiction of the States, while 
assuring to them tlie protection of the Federal govern- 
ment, and yet to assign to that government all the 
predominance necessary to its permanence and its 
successful administration, was much the most difficult 
problem presented to the authors of the Constitution. 
It was solved with a success that has proved comi)lete. 
And the provisions by which the result was accom- 
plished are perhaps the most interesting that the Con- 
stitution contains. It maj^ be useful to advert, very 
shortly, to the principles upon which they rest. 

The tenn " federation " is capable of different mean- 
ings. It ma}' signify a mere alliance between States 
for certain purposes; or it may mean the formation 
out of several States of one common government. 
In either .sense, but especially in the latter, it indicates 
a process of union between those previously separate, 
not a separation of those before united, and presup- 
poses both independence and equality on the part of 
all its members. This was the condition (as has been 
shown before) upon which the American Union was 
founded. All the States of which it is composed re- 
served to themselves the same independence and the 
same powers, surrendered to the Federal government 
the same measure of authority, and acquired under 
that government the same rights, thus preserving, 
after the Union, the equality in all respects which 
existed between them before it was formed. The 
national government by this means created was a 
new one, the product of the compact to which all its 
people, acting through the medium of their States, 
became parties. And in all its departments they have 
a .share, equal as States, proportionate as citizens : 

333 



ORATIONS AND ESSAYS 

in the Senate all States having an equal representa- 
tion ; in the House of Representatives, a representation 
based upon population. In the election of a President, 
these two bases are combined, each State having 
two electoral votes, and as many more as it has Rep- 
resentatives in the House, which must at least be one. 
Thus New York, which has thirty-six Representatives, 
has thirty-eight electoral votes ; while Delaware, which 
has but one Representative, has three electoral votes. 

Under the Constitution the States acquire, also, 
all necessary protection. It is made the duty of the 
Federal government to protect each of them against 
invasion, and, on ajiplication of the legislature of a 
State or of its executive (when the legislature can- 
not be convened), against domestic violence. 

Another source of strength to the American Federa- 
tion is found in the similarity which it insures among 
the State governments. It is questionable whether 
this element may not be indispensable to the success 
of a national authority founded upon a federation, at 
least when its members are contiguous. It is provided 
in the Constitution that the United States shall guar- 
antee to ever3^ State a republican form of government ; 
that is to say, that even a majority of the peojile of anj' 
State would be restrained, by the interference of the 
national power, from establishing a government of 
any other character. The States that formed the 
Union had all pre-existing republican constitutions 
of their own. Before any State is admitted by Con- 
gress to the Union the form and nature of its proposed 
State goverrmient is scrutinized, and conditions in re- 
spect to it may be imposed if Congress deems it proper. 
This appears to be essential to the symmetr}' of the 

33'i 



THE UNITED STATES CONSTITUTION 

Union and to the discharge by the States of the obhga- 
tions and requirements incurred by becoming mem- 
bers of it. It is essential also to those rights of inter- 
citizenship among the citizens of different States that 
have been before described. They must be made 
friends in a common interest, not enemies in a con- 
flicting one. The difference between the institutions 
of the Northern and of the Southern States arising out 
of the existence of slavery in the latter was a disturb- 
ing element from the very outset. It was felt in the 
convention that proposed the Constitution, and had 
then to be made the subject of comi)romise, and it con- 
tinued to be a steadily increasing menace to the stability 
of the Union, till it resulted in civil war. It was found 
impossible to adjust the rights of inter - citizensliip 
which the Constitution provided for, and which were 
necessary to the harmony of the States, consistently 
with the requirements of a system which was at war 
with all the principles on which the government was 
based and with all its other institutions, as well as 
violently opposed to the public opinion of the Northern 
States. And its history affords a striking illustration 
of the necessity that, in a federation of independent 
states into one government, the institutions of the 
states and the sentiments of their people should be 
substantially alike. 

Besides the requirement that republican forms of 
government be maintained, the States, as has been 
seen, are speciallj' and carefully debarred by the Con- 
stitution from all measures, of whatever sort, that would 
be inconsistent either with their relation to the national 
power or with harmony and free intercourse between 
each other. And the disturbing element of hostile 

335 



ORATIONS AND ESSAYS 

religions is excluded, by the provisions that no law 
respecting the establishment of religion shall be made, 
and that no religious test shall be required as a quali- 
fication for any office or public trust under the United 
States. It is not easy to see how any contest or con- 
troversy can now arise between the States. 

Equally essential to the success, and even to the 
existence, of a federation under a written constitution, 
is the constant presence of some authority, in its nat- 
ure judicial, to determine the questions of disputed 
jurisdiction between the national govermnent and 
the States, that must continually arise, and which no 
language that can be employed can possibly preclude ; 
and to decide upon the validit}^ under the provisions 
of the federation, of the legislative or executive action 
of one party or the other, when its authority is chal- 
lenged or doubted. It is manifest that a tribunal that 
undertakes these delicate and important duties must 
be the instrument, not of the States which form the 
federation or of the government that results from 
it, but equally of both — that it should be of such 
character, dignit}', and ability as to command general 
confidence and respect, and that its determinations, 
when pronounced, should be enforced, if need be, by 
the whole power of the national organization. 

The Supreme Court of the United States stands in 
these respects impartially and in a commanding at- 
titude between the Federal government and the States, 
the joint creation of both, equally interested for both, 
its members being citizens of different States, selected 
by the President, confirmed by the Senate, impeach- 
able for judicial mi.sconduct on presentation bj' the 
House and trial by the Senate, and, unless upon im- 

336 



THE UNITED STATES CONSTITUTION 

peachment, their independence assured by a life tenure 
of office and of compensation. It is no foreign tribu- 
nal, therefore, nor one appointed by one power to adju- 
dicate upon the rights of another, that thus constitutes 
the balance-wheel of the system of American Federal 
government. Nor is there any department of the 
governmetit which has at all times and uniformly, 
tlirough all political changes and all administrations, 
so fully retained the public confidence. Its members 
have throughout been men of the first rank, and its 
later judgments, as well as the earlier, have been 
usually approved both bj' lawyers and by statesmen. 
The great business interests of the country have con- 
tinued to feel themselves safe in its hands, while 
among the common people there has grown up a sort 
of vague faith that would sometimes be ludicrous, if 
human faith and trust could ever be altogether ludi- 
crous, that there can be no great wrong or outrage 
for which, if found remediless elsewhere, there is not 
in the last resort, somehow or otlier, a redress to be 
obtained in the Supreme Court of the United States. 

It is as material to the industry and the property 
of a country that confidence in their protection should 
be unimpaired as that the}^ should actually be pro- 
tected. It may be even better that the3'^ should be some- 
times invaded than that it should be generally under- 
stood they are likely to be. 

The system of checks and balances established by 
the Constitution between the various departments of 
the Federal government is another distinctive and 
important feature of its provisions. It is very complete, 
and binds together the sources of authority in such a 
manner that no serious abuse can take place without 
Y 337 



ORATIONS AND ESSAYS 

the concurrence of at least two, if not of all three. Aside 
from the division of powers which excludes the Federal 
government from the exercise of a large share of them, 
which is left to the States, it will be seen that, in the 
legislative department, the two houses, each acting 
entirely and quite independently upon its own views, 
constitute a check upon each other. There is no tradi- 
tion nor understanding that either must give way to 
the demands of the other, nor can either be in any 
respects coerced. The veto power of the President is a 
check upon both. There must be either a concurrence 
of the two branches of the Legislature and the Ex- 
ecutive, or of two-thirds of both houses against the 
Executive, in order that any legislation whatever 
shall take effect. And when by either of these means 
a law is enacted, if its constitutionality is denied by 
any person whose rights are affected by it, the judg- 
ment of the judicial power must also be had in its favor. 
The President, on the other hand, is subject to the 
action of Congress in the enactment of all laws thai 
come within their constitutional authorit}', and which 
are duly enacted, and it is made his duty to see that 
they are faithfully executed. In the making of treaties 
and appointments to office he is checked by the action 
of the Senate in respect to their confirmation. He can 
expend no money for any purpose not first appropriated 
by Congress. His action, as well as that of the legis- 
lative department, may be subjected to the judgment 
of the courts, if it invades any personal right, and is 
in contravention of constitutional restrictions. And, 
finally, he may be impeached by the House and tried 
before the Senate for any offence that is the proper 
subject of that proceeding, and thus, if found guiltv, 

338 



THE UNITED STATES CONSTITUTION 

be removed from office. But in the appointment and 
retention of his Cabinet, and in the general adminis- 
tration of the government, he is entirely independent, 
and is miaffected by hostile majorities in either house 
of Congress. And, except bj- impeachment, neither he 
nor his Cabinet can be turned out of office, until the 
end of his tenure arrives. 

The judicial department, subject in all respects to 
whatever legislation may be adopted by Congress 
within the limits of its authority, and liable to im- 
peachment as before pointed out, is paramount only 
in its power over constitutional questions within the 
limits that have been stated. 

Each department is, therefore, independent and su- 
preme to the just extent of its authority, and cannot 
be controlled therein bj^ anj' other. Each, on the 
other hand, is restrained within the projjcr limits of 
its power by the action of the other branches. Around 
all stand the impassable and clearly defined barriers 
of the Constitution, " the supreme law of the land. " 

In respect to the judicial protection afforded by the 
Constitution of the United States, not only against 
private but against legislative or governmental in- 
fringement, enough has been .said. It will be observed 
that this protection is not a substitute for legislative 
provisions, but is supplementary to them, and a check 
upon them. Congress and the President are as much 
bound to respect in their action the limits of the Con- 
stitution as the courts are, and it is not jiresumed 
that either will ever consciously exceed them. It is 
only in the event that, under pressure of political 
controversy, or of popular feeling, or some mistaken 
view of the restrictions of the fundamental law, such 

339 



ORATIONS AND ESSAYS 

an excess of authority should take place, that the 
additional safeguard of an appeal to the judicial power 
comes into play. It is not, therefore, the question 
whether legislature or judiciar\' should determine 
whether a law contravenes the Constitution ; so far as 
individual rights are concerned, both must concur, 
if the action of the legislature is challenged on that 
ground. 

In the prominence thus given to the judicial power, 
the Constitution of the United States stands alone 
among systems of government. The result, thus far 
in its history, has been most satisfactory. The con- 
struction and application which the Constitution has 
received have been wise, just, harmonious, and stable. 
It has not acquired its significance from party views, 
varied with the change of administrations, nor under 
the influence of popular opinion. It has taken shape 
under the calm light and dispassionate discussion that 
belong to judicial consideration, where partisan con- 
troversy does not intrude, and where all previous 
precedents are kept in view. A gradual and permanent 
structure of constitutional law has, therefore, grown 
up, sound in its principles, clear and exact in its ex- 
pression. 

It is not to be doubted that it is because its construc- 
tion was intrusted so largely to the judicial department, 
rather than to the legislative, that the Constitution has 
survived. Had the disposal of the new and vital ques- 
tions it presented been submitted to the latter, and 
decided, as they might have been, by the votes of many 
who were incompetent to deal with such subjects, and 
under the influence of political excitement, party war- 
fare and personal ambition, it would have been hardlj- 

340 



THE UMITED STATES COiN STI TU TION 

possible that thej' should have received the salutary 
solution they have now attained. Nor would any 
solution have been final. What one legislature might 
do, it would have been open for another to undo. And 
the Constitution would in many material respects have 
fluctuated in its meaning, in sympathy with the opinion 
of parties and the exigencies of administration, un- 
stable as the legi.slation it was designed to control. 

It is not intended in these observations to institute 
any general comparison between the legislative and 
the judicial powers as the ultimate guardian of the 
rights of the citizen, but only to illustrate the work- 
ing of one system in which the two have been com- 
bined. It is undoubtedly true that, in the history of 
free institutions, there has been a gradual advance 
towards a greater centralization of power in the legislat- 
ure, which, if subjected to no checks, may be expected 
to continue. It has been American experience, cer- 
tainly, that it is the encroachments of that department, 
rather than of the Executive, which need principally 
to be guarded against. The common law in all its 
branches is fast being superseded by statutes, each 
framed with a view to its own subject only, with no 
reference to the general harmony of the system of which 
it forms a part. Legislation is coming to be thought 
the universal remedy, and it does not appear to be felt 
that there can be too much of it. Limits that have 
formerly restrained it are regarded with impatience, 
and legislatures are reproached if the quantity they 
turn out is small. Human sorrow and misfortune are 
deemed to be chiefly due to the want of more law. Even 
the hungry and the naked are taught that tliey maj^ 
be fed and clothed with the east wind of fresh statutes. 

341 



ORATIONS AND ESSAYS 

It may be that all human government tends more or 
less slowly towards despotism of some kind, either 
in executive power, in an aristocracy, in legislative 
authority, in political organizations, or in the suprem- 
acy of the multitude. Perhaps the very effort of 
guarding against one form leads towards another, 
and so history repeats itself in a slow but perpetual 
revolution. Power may breed power wherever it 
resides, and the machinerj' devised to restrain tyrannj' 
may become in time itself tj'rannical. If these sombre 
views are well founded, that system of government 
is the best which most strongly opposes and longest 
retards the inevitable process and offers the most 
hopeful j)romise of "peace in our time." Upon a 
thoughtful review of the Constitution of the United 
States, it may probably appear that there is no other 
system that has, on the whole, combined together as 
many safeguards of that true liberty which is under 
the law, not beyond it, which supports the law instead 
of opposing it. 

That future amendments of the Constitution of the 
United States may be found necessary is not improb- 
able. Perfection is not to be claimed for it; nor, were 
perfection attainable, could it be permanent, because 
government, like law, nuist advance with society. 
As has been .seen, its structure consists of two very 
different elements: the principles upon which it is 
founded, and the machinery it devises. The former 
are not likely to change, for, if sound, they must always 
remain so. No modification of them has been proposed, 
or even suggested, as yet, save the early additions, al- 
ready described, by which restrictions on governmental 
powers were expressed, which were before only vuider- 

34-2 



THE UNITED STATES CONSTITUTION 

stood, and those later great and salutary amendments 
by which the blot and inconsistency of slavery was 
finally removed. 

In respect to the machinery, the Constitution itself 
provides the means by which amendments can be 
obtained. What changes ma}' be found desirable 
hereafter it is useless to speculate upon, and impossible 
to predict. It may be safely assumed that none will 
be adopted in anticipation of their necessity, nor upon 
the strength of any prognostications, however skilful. 
Prophecy has small influence on Anglo-Saxon people, 
and reasoning in advance of the facts almost as little. 
They readily accept the maxim, " Sufficient unto the 
day is the evil thereof," and stand fast by existing 
institutions against all arguments to prove that they 
are going to fail, until e.xperience proves that they have 
failed. By such experience, once clearly obtained, 
they rapidly profit. It is the best hope of the race 
that no fabric will long stand before it when demon- 
strated by the logic of events to be unavailing, mis- 
chievous, or wrong. 

Some important topics in governmental adminis- 
tration, though not involving any constitutional 
amendment, have already begun to attract attention 
in the United States, and maj' hereafter be more largely 
considered. Bills have been introduced in Congress 
during its present session intended to jjrevent more 
effectually the immigration of foreign paupers, and of 
anarchists and other criminals. The generosity of 
the nation in receiving all comers without inquiry 
is felt to have been abused, and the abuse will not 
probably be permitted to continue. There is a dis- 
position also to pay a stricter regard to the require- 

343 



ORATIONS AND ESSAYS 

ments of the naturalization laws and to the character 
of those who are admitted to the franchise. It is not 
unlikely that amendments to those laws may be pro- 
posed hereafter, leading to a more careful administra- 
tion of that subject. The general question in respect 
to the exercise of the franchise must in time require 
to be dealt with in all free governments: whether 
it is to be treated as a natural right, to which all human 
beings are born entitled, whatever may be the conse- 
quences to others, or whether it should be a political 
right, open to be acquired bj' all who will make the 
necessary exertion and maintain the requisite charac- 
ter, and denied to those who prefer to remain unfit 
for it. 

The tenure of the Presidential office has also begun 
to be the subject of consideration, though no proposal 
in respect to it has been brought forward. It is perhaps 
not improbable that there may be in time an inclina- 
tion in the public mind to extend the length of the 
term, and to make the President not eligible for re- 
election. Tliis would of course, require an amendment 
of the Constitution. 

The best evidence of the merits of the Constitution 
of the United States is to be found in the success that 
has thus far attended it. The test of all political 
theories, however erudite and plausible, must be found 
in experience. Government is a practical concern, 
and the most philosophical and scientific propositions 
in regard to it are of very little value unless capable 
of adaptation to the daily current of human life, to the 
conditions by which it happens to be surrounded, and 
to those unforeseen vicissitudes that time never fails 
to produce. What good came of it at last? is the de- 

344 



THE UNITED STATES CONSTITUTION 

cisive question which mankind will ultimately apply 
to every sj^steni which may be set up to rule over them. 

It is to be remembered, certainly, in all consideration 
that is given to American institutions, that it is still 
a very young country, which has only just celebrated 
its first centennial. Its succe.sses, as well as its failures, 
are to be estimated accordingly. It may have much 
yet to learn, to experience, and to acquire. There is a 
strength which pas.ses away with youth, as well as 
one that comes with maturity. But it is not the least 
powerful element of permanence in those institutions 
that they command the complete confidence and affec- 
tion of the people who live under them. Unhappy 
is the government which is distrusted by its subjects. 
Whether or not any changes in subordinate details 
may be found necessary in that country, as they have 
been in all others, the attachment of the people to their 
Constitution, its principles, and all the leading features 
of the government under it, is unanimous and hearty. 
Even minor amendments will probably be found slow 
of accomplishment, because any proposal of change 
would be regarded with jealousy. 

But upon this point it is only just to the American 
people to say, in conclusion, that they have too much 
of the good sense which belongs to their race to desire 
to make proselytes in other coiuitries to their political 
ideas. They are very well aware that all govern- 
ment must be the product of its own soil, and be con- 
trolled by the conditions that attend it and the tradi- 
tions under which it is derived. It is as necessary that 
a people should be fit for a government as that a govern- 
ment should be fit for a people. American institutions 
may well enough be one thing in America, and quite 

34.5 



ORATIONS AND ESSAYS 

another elsewhere. How far they could be success- 
fully borrowed, transplanted, or engrafted upon any 
older system is a question too doubtful to be answered, 
unnecessary to consider, and which Americans are very 
far from proposing to discuss. 



II 

THE CHOICE OF PRESIDENTIAL ELECTORS 



THE CHOICE OF PRESIDENTIAL 
ELECTORS 



Whether presidential electors for the congressional 
districts ought to be chosen by such districts or by 
State ticket, is a question that is more and more en- 
gaging public attention. Discussions of that sort 
are often premonitory of approaching changes in 
methods of government. Men of our race are prin- 
cipally guided in such subjects by the light of ex- 
perience. They are not nuich concerned with theoret- 
ical speculations as to the future success of institutions, 
but rarely fail to profit by the lessons of the past. It 
is only when mischiefs have gradually made them- 
selves apparent through a considerable period of time 
that the general intelligence begins to turn of its own 
accord towards a consideration of the remedy. The 
debate that ensues, and the comparison of views, 
not at first concurrent nor altogether mature, bring 
about at last such an agreement of the majority as 
produces a permanent, jierhaps a constitutional change 
in the existing system. 

It is to be remarked in the first place that the method 
of choosing presidential electors which now prevails 
(except in Michigan where it has been recently abol- 
ished), while constitutional in the sense that the Con- 

349 



ORATIONS AND ESSAYS 

stitution does not prohibit it, is entirely at variance 
with the original design of that instrument. Its 
framers intended, and supposed they had provided, 
that the President should be selected as well as voted 
for by the electors. The function of the people was 
to elect the electors, not the President. The office of 
elector upon that theory was a very important one. 
Its members chose a President as the legislatures 
choose Senators, in the exercise of an independent 
judgment, limited only bj' the few conditions of eligi- 
bility imposed by the Constitution. It was not con- 
templated that the electors should be merely the 
registers to set down, and the mes engers to carry 
votes for a candidate to whom they were jiledged be- 
forehand, and from whom they were under no cir- 
cumstances at liberty to withdraw. During the first 
three presidential elections, the constitutional method 
was pursued. But custom for a long period has de- 
prived the electors of the power originally conferred 
upon them, and has ordained that they shall be only 
the instructed instruments of their party to record 
a vote in favor of the person nominated before the 
election, by a political convention. No elector would 
now venture to use, nor indeed, as a man of honor, 
would he be at liberty to use, any discretion in the 
matter. Indeed it may be questioned whether if the 
candidate so nominated should happen to die after the 
election and before the meeting of the electors, those 
bodies would feel themselves authorized to exercise 
their constitutional power of voting for another man, 
vmtil a new convention of their party should have 
presented him as the candidate. 
The consequence is that the right of the American 

350 



CHOICE OF PRESIDENTIAL ELECTORS 

citizen in a presidential election is practically limited 
to a choice between two persons previously selected 
by party conventions. Theoretically, he may vote 
for any electors whose names he chooses to inscribe 
on his ballot. But any ballot, except for one of the two 
party nominations, is only an elaborate and incon- 
venient contrivance for throwing his vote away. The 
President is really appointed, in the alternative, by 
the party conventions; all the voter has to do with 
the matter is to vote for one or the other of these nomi- 
nees, or to abstain from voting at all. It is true that, 
if the dissatisfaction with party nominations should 
be so extensive as to lead to a third, which should 
have strength enough to command the electoral vote 
of some State or States, the election might be thrown 
into the House of Representatives. But as that body 
is now constituted, the choice of the House, restricted 
by the Constitution to the three candidates who had 
received the highest electoral vote, would almost cer- 
tainly devolve upon the regular nomination on the 
side to which the majority of the House belonged. 
It is too late to consider, and useless to discuss the 
wisdom, policj', or consistency with the true theory 
of republican government, of the departure from the 
constitutional method which has thus become estab- 
lished in practice; for it is not easy to see how it is 
now to be avoided. Nothing short of an ainendment 
of the Constitution would be effectual, and no such 
amendment has yet been proposed, or, as far as can 
be discerned, is like to be. 

But it still remauis to be considered how the sense 
of the people can be most fairly ascertained, in the ex- 
ercise of the very limited right of choice that is left 

351 



ORATIONS AND ESSAYS 

to them. For the last half century, and until Michi- 
gan introduced a change bj' recent legislative enact- 
ment, the electors, not only at large but for the Con- 
gressional districts, were chosen by general ticket 
in all the States. Consequently, though some or 
many such districts may give large majorities one 
way, if the aggregate majority in the State, however 
small, is the other way, that determines the choice 
of all its electors. And not only may the election 
be thus decided, but the large States, and often a 
single large State, obtain an almost absolute right 
of dictation in the nominating conventions of the re- 
spective parties. It not only decides which of the 
two nominees shall be elected, but determines before- 
hand who they shall be. It is regarded in practical 
politics, which constitutes nowadays the science of 
government, as fatal to the nomination of the most 
desirable and widely desired candidate, if it can be 
shown that the opposition, for whatever reason, of 
some relatively small faction in one of the large States, 
makes it doubtful whether he will obtain an aggregate 
majority there. The people of the other States, and 
indeed the majority of the people of that State, are 
therefore not only restricted in the election to the choice 
between the two party candidates, but they must 
submit to the dictation of perhaps a small minority 
in the selection of the candidates themselves. And 
it is considered as a grave objection to the nomination 
of any man that he lives in a small State. It is this 
condition of politics which has gradually drawn at- 
tention to the inquiry whether a change of the pre- 
vailing method of elections by general ticket, so far 
as the district electors are concerned, is not desirable. 

352 



CHOICE OF PRESIDENTIAL ELECTORS 

In the consideration of this subject, it will be ad- 
mitted to be of the first and last consequence that it 
should not be regarded from a partj'- standpoint. The 
question presented is not stricth^ a constitutional 
one, since either method is consistent with the letter 
of that instrument. It is nevertheless a question of 
that nature, because it involves the expediency of an 
important and probably permanent change in the 
manner of the e.xercise by the people of a great 
constitutional function and right. Such topics are 
not within the proper domain of party politics. 
The Constitution, its methods, and its machinery 
form the conmion basis upon which all political action 
should rest. They cannot be wisely or safety dealt with 
upon partisan motives, nor for partisan purposes. A 
change that should be brought about by one part}' 
for its own benefit would be likely to be abrogated 
by the other, when in its turn, which is certain to come, 
it succeeds to power. Higher and more statesman- 
like views — something of the patriotic spirit that in- 
spired the authors of our Constitution, and brought 
all parties into harmony in its adoption — a fair and 
thoughtful consideration, looking not to personal 
or party advantage, but solely to the requirements 
of the general welfare, will be necessary to the just 
determination of questions of this character. Nor, 
indeed, if it were attempted to deal with this subject 
aside from its merits, and only in aid of the necessities 
of one or the other of the political parties, would it be 
possible to foresee which would be the ultimate or 
even the immediate gainer bj^ the proposed change. 
Each would be likely to gain in some quarters, and 
to lose in others ; to succeed in some elections, and to 
Z 353 



ORATIONS AxND ESSAYS 

fail in others. How the uUimate balance of profit 
and loss would adjust itself is beyond the reach of 
prophecy, and quite unworthy of consideration. It 
is from the point of view of neither party that the sug- 
gestions of this article are offered. 

If, as seems probable, the election of President is 
to continue to be made through previously instructed 
electors, and thus substantially by a direct popular 
vote, the true question to be considered, as between 
the two methods of choice under discussion, is which 
of them most fairly gives expression to the will of the 
people. That under a republican form of govern- 
ment the majority must control, is universally con- 
ceded. But what does the term majority really mean? 
Is it the aggregate majority of the entire people of 
the United States, or is it the majority in such political 
sub-divisions of the country as it is found expedient 
to create? And if the latter, what shall those sub- 
divisions be? The most strenuous advocate of the 
majority rule would not agree to an amendment of 
the Constitution which should provide that the election 
of President should be determined by the aggregate 
vote in all the States of the Union, so that the candi- 
date should be elected who upon a count of the whole 
received the greatest number of votes. Many Presi- 
dents have been elected who upon such a computation 
would have been defeated. They have been chosen 
by a minority of the vote cast, over competitors who 
have received a majority. A dozen votes in the right 
place may thus overrule many thousands in other 
places; and a President may be elected against the 
expressed will of the larger proportion of the people 
over whom he is called to preside. Such a result 

354 



CHOICE OF PRESIDEATIAL ELECTORS 

is entirely in accordance with the provisions of the 
Constitution. The same thing constant^ takes place 
in the election of the State legislatures ; the vote being 
b}^ districts, a political majority of one or both houses 
is frequently chosen, when the aggregate vote of the 
State is stronger the other way; while if the legis- 
lative body had been elected upon general ticket, it 
would have been unanimously the opposite, jiolitically, 
to what it is. By legislatures thus chosen. Senators 
of the United States are often elected from a jiarty 
which in the whole State is in a minority. Yet both 
legislatures and Senators act for the entire State, 
whose majority is thus overruled. So in the election 
of members of Congress ; in most of the States large 
enough to have more than one district, the members 
are divided between the political organizations, though 
if elected bj' general ticket they would all belong to 
the .same. It has never been claimed that in any 
of these cases the will of the majoritj^ is in anj' proper 
sense defeated, or that a minority has been permitted 
to determine the elections. These illustrations show 
that under our Constitution, as in all systems of free 
government, the term majority has a relative or quali- 
fied meaning, and refers, not to an absolute prepon- 
derance of the entire popular vote, but to a majorit}' 
in the municipal sub-divisions, great or small, within 
and for which the election takes place. That is to say, 
that the people govern by representation, and not in 
mass; indirectly, not directly. 

It is not true, under the spirit or by the letter of the 
American Constitution, that minorities have no rights 
which majorities are bound to respect. If that were 
so, one section of the country might speedilj' take 

3,S5 



ORATIONS AND ESSAYS 

possession of the entire government, under which the 
remainder would be virtually only provinces. While 
the general theory of majority rule is the funda- 
mental idea, it is the safety and the excellence of our 
system that this shall not be carried too far, and that 
the voice and interests of all sections, sub-divisions 
and localities shall have their fair share of influence, 
and shall not be overridden and extinguished by the 
preponderating majorities of the country at large. 
How to give due effect to the voice of minorities with- 
out making them paramount has always been the 
problem of constitutional government. Saj^s Judge 
Coolej^ : " American government is frequently spoken 
of as a government based on faith in majorities, and 
the machinerj^ of election as being provided merely 
to ascertain what the will of the majority is. But 
the government is never handed over to the absolute 
control of the majority, and many precautions are 
taken to prevent its expressing exclusively their will." 
Since then it is apparent that in a Presidential elec- 
tion, as in many others, the general majoritj- does 
not and ought not to control, but only the majorities 
ascertained in the various sub-divisions of the coun- 
try created for that purpose, the question remains. 
What is the just limit of those sub-divisions? In 
other words, since the election takes place through 
representatives, whom does the elector properly rei> 
resent — the people of the district within and for which 
he is chosen, or the people of his entire State? The 
Constitution answers this question. Each State "shall 
appoint in such manner as the legislature thereof 
may direct, a number of electors equal to the whole 
number of Senators and Representatives to which 

356 



CHOICE OF PRESIDENTIAL ELECTORS 

the State may be entitled in the Congress." An exact 
analogy between Congress and the electoral bodies 
is thus expressly established. Two kinds of electors 
are virtually provided for : electors at large, and 
electors for the districts. And this distinction has 
always been practically observed in their nomina- 
tion and title. The electors at large, two of whom 
are chosen for each State, whatever its population 
may be, correspond to its Senators, and represent 
the State. They should unquestionably be chosen 
by the vote of the State, and should be in accord with 
its majorit}^ The district electors, on the other hand, 
correspond to the members of the House of Represent- 
atives, and represent the people of their respective 
districts. They no more represent the aggregate 
majority of their State, than members of Congress do. 
The States, as such, have their full voice through 
the electors at large. Out of four hundred and 
thirteen electoral votes, they thus cast eight}" - eight. 
To the districts properly belong the district electors, 
and they should be chosen accordingl^^ 

It is true that the Constitution, as has been pointed 
out, does not e.xpressly provide that the election of 
district electors shall be by the vote of districts, nor 
that the elector must be a resident of the district for 
which he is chosen. But neither does it contain anj^ 
provision that members of Congress shall be chosen 
by or for districts which they sit for, or shall be resi- 
dents of their districts. The clause in the Constitu- 
tion by which the House of Representatives is estab- 
lished is this: "The House of Representatives shall 
be composed of members chosen every second j'ear 
by the people of the several States." It provides further 

357 



ORATIONS AND ESSAYS 

that the Representatives shall be apportioned among 
the States according to population, and that until 
the first enumeration is made by Congress, " the State 
of New Hampshire shall be entitled to choose three, 
the State of Massachusetts eight," etc. Section 4 
of the same article enacts that "the times, places, 
and manner of holding elections for Senators and 
Representatives shall be prescribed in each State by 
the legislature thereof; but the Congress may at any 
time by law make or alter such regulations, except 
as to the places of choosing Senators." There is 
not to be found in the Constitution anj^ reference what- 
ever to congressional districts, their creation, or their 
vote. The whole subject of the manner of electing 
Representatives is left to the States, as in the case 
of the presidential electors, subject only, in respect 
to the former, but not the latter, to the power of Con- 
gress to interfere. It is therefore unquestionable, that 
if the people of any State should determine through 
its legislature that the election of Representatives in 
Congress should be by general ticket, that method 
would be permitted by the Constitution, if no act of 
Congress existed to the contrary. 

Such, indeed, was the early practice in manj^ States. 
Members of Congress were elected bj' general ticket, 
were sometimes elected by the legislatures, and some- 
times from districts that chose two or more members. 
The change to the system of election by districts has 
among some of the older States been gradual, but is 
now everywhere complete, not a Representative being 
chosen in any other way. In 1878, this mode of choice 
was established by Congress. And no man would 
at this day venture to propose such an exercise of the 

358 



CHOICE OF PRESIDENTIAL ELECTORS 

power of the majority as to deprive the districts of theii 
independent representation, and to confer it upon 
the States. 

The true theory of the Constitution is further very 
clearly shown, in its provision for the election of Presi- 
dent by the House of Representatives, in case a choice 
fails to be inade by the electors. In that event the 
election takes place by ballot, from the persons, not 
exceeding three, who had the highest number of elec- 
toral votes. A majority of States is necessar}' to a 
choice, and each State has but one vote. That vote 
is therefore determined by the majority of the members 
of Congress from the State. If a State has, for in- 
stance, seventeen members of Congress, nine of one 
party and eight of the other, its one vote maj^ be 
cast by the nine, though the State may have voted 
by a large majority for the opposite candidate, and 
though the nine may have been elected by majorities 
in their districts, the sum of which is largeh' in the 
minority of the entire vote of the State. This result 
is right, under the Constitution, and would be uni- 
versalty acquiesced in; because the choice of the 
House is decided by districts, and the member rep- 
resents his district, and not the State at large, in 
casting the individual vote which may determine the 
vote of the State. Precisely as the electors would do, 
if chosen by districts. Both methods of electing a 
President provided by the Constitution would thus 
become harmonious in principle. But if when the 
election is through electors the vote of the State is 
to be controlled by its aggregate majority instead of 
the majority of districts, then the two methods are 
diametrically opposed to each other. It is not easy 

359 



ORATIONS AND ESSAYS 

to believe that such was the intention. There is a 
spirit of the Constitution, and a letter ; a theory of 
government, and express provisions wliich to a cer- 
tain extent carry the theory into effect, leaving the 
rest in the discretion of the States, or of Congress, 
or of the Executive, as the case may be. The spirit 
and the theory may undoubtedly be violated with 
impunity, if the express conditions are not infringed, 
because without such infringement there can be no 
judicial interference. But how far it is ever prudent 
or safe to disregard the intent of the fundamental law, 
is for wise men to consider. It is the highest proof 
of the symmetry and far reaching wisdom of that in- 
strument, that whenever such an experiment is tried, 
its result is tuifortunate. 

But loolving at the question as one of policy merely, 
and waiving for that purpose the inquiry as to the theory 
of the Constitution, what are the considerations that 
ought then to decide it? It may well be asked why, 
if members of Congress are elected by districts, electors 
should not be chosen in the same way, as the}^ for- 
merly were. If it is fair and right and in accordance 
with the republican idea in the one case, why not in 
the other? The Constitution, as has been seen, puts 
both Representatives and electors on precisely the 
same basis, and in the same analogy. Upon what 
principle, or for what purpose, should district elections 
be adopted in one case and not in the other? It is 
believed that none can be stated. If a State having 
two congressional districts and four electoral votes 
should cast in one of these districts a majority one 
way of one thousand, and in the other a majority the 
other way of twelve hundred, can any just reason be 

360 



CHOICE OF PRESIDENTIAL ELECTORS 

given why this aggregate majority of two hundred 
should control not only the electoral vote of the dis- 
trict in which it exists, and the two electoral votes 
of the State, but also the remaining vote in the other 
district, against its popular majority of one thousand? 
And if it should, then how is it possible to maintain 
that it ought not likewise to elect the members of Con- 
gress from both districts? The motives for the de- 
parture from the earlier method of the choice of electors 
by districts were never distinctly stated, and are not 
now apparent. It was a change in political fasliion, 
that came about as other changes in fashion do, with- 
out any definite cause. The evils that it has brought 
about, especially since the great changes that have 
followed the unexampled growth of the country, are 
very serious. The great States, as has been shown, 
have attained a predominance both in the nomina- 
tion and in the election of President, far beyond what 
is due to their relative population. That predomi- 
nance has demoralized the whole business of choosing 
the executive head of the government. These States 
have meanwhile, in the growth of the country, become 
much larger, and the others relatively smaller. A 
single congressional district in one of them may, 
and not infrequentlj- does, change the majority in 
the whole State, and thereby not only determine its 
entire electoral vote, but the election of the President. 
It is further to be remembered that in the great cities 
of the country are to be found, without regard to party, 
the dregs of the popular vote — that which is most easity 
purchased, controlled, and marshalled by unscrupulous 
men ; that which tends to cast the gravest doubt upon 
the theory of universal suffrage. The facilities in 

36 r 



ORATIONS AND ESSAYS 

those cities for political management increase the 
power of this vote, precisely as the efficiency of the 
rank and file of an army is increased by organization, 
drill, and competent leadership. No one would sup- 
pose that if the greater part of the population of our 
large cities was to be diffused through the rural dis- 
tricts, its political vote would remain the same. Other 
influences of all sorts would be brought to bear upon it. 
Much of it would coalesce with the majoritj^ in its new 
surroundings, as it did with that in its old. The 
tendency is all the time, unfortunately, towards the 
increase of the cities at the expense of the country. 
And it is becoming more and more true every day 
that the vote of the great cities is unfairly overriding 
that of the rest of the country, and deciding the elec- 
tions not only of the States in which they are situated, 
but the nation at large. It will hardly be regarded 
by thoughtful men as wise or republican or consistent 
with the true principles of our government to increase 
rather than to check the predominating influence of 
these cities, beyond what fairlj^ belongs to them, and 
to place virtually the national government as well as 
those of the States within their control. 

Whatever tends towards a diminution of the odious 
power of the political " boss " is likel}' to be accepted as 
beneficial. And whatever promotes a just equilibrivun 
between the different portions of the country, whether 
urban or rural, so that a majority in one quarter shall 
have no greater relative weight than an equal major- 
ity in another, is certainly a step in the direction of 
the true principles of republican government. 

President Harrison, in his recent message to Con- 
gress, has justly deemed this subject worthy of notice. 

362 



CHOICE OF PRESIDENTIAL ELECTORS 

His views are clearly and fairly jiresented, and are 
entitled to respect. He undoubtedly states the argu- 
ment against the jiroposed change in the most forcible 
light possible. If the objections he makes to it are 
not fovmd sufficient to overcome its advantages, it 
is safe to infer that no others can be discovered which 
will need to be considered. He does not question that 
the election of the district electors by the vote of the 
districts would be in conformity with the Constitution, 
and concedes that an amendment of that instrument 
would be necessary to preclude it, where States mav 
think proper to adopt it The i)rincipal and almost 
only point which he makes against it is that districts 
might, by unscrupulous action on the part of the leg- 
islatures, be so constructed geographically as to create 
majorities where by a just and natural division they 
would not exist — or, to use the slang political phrase 
in vogue, be "gerrymandered." hi other words, 
that the proposed system maj' be cajiable of abuse. 
This is to some extent true, as past exjierience has 
unhappily shown. There are doubtless at this time 
congressional districts in the United States, fortu- 
nately very few which by the partisan conduct of 
one or the other of the political parties have been un- 
fairlj' created, so as to give to one side or the other 
more members of Congress than it is fairh' entitled 
to. If the possibility of abuse is a decisive objection 
to an institution or a method of procedure, the wit 
of man has never devised one that could stand. There 
is no feature in anj^ sj'stem of government that e\'er 
existed or ever can exist which is not capable of abuse, 
and is not open to objection. A perfect political code 
has never been discovered, and never will be. A con- 

363 



ORATIONS AND ESSAYS 

siderable argument can be presented against the best 
of them. The only ground on which any machinery 
of government is accepted is that its merits over- 
come its defects ; so that while not free from blemish, 
and not all that could be desired, it is on the whole, 
upon striking the general balance, the best attainable. 
No reflecting man can contemplate our own system 
of government without seeing in many directions 
the gravest and most dangerous abuses. If we fix 
our eyes upon those exclusively, we should be ready 
to abandon republican government in despair. But 
when we propose to ourselves the question what shoidd 
we substitute for it, and turn our attention to the con- 
dition of all other systems which the world has known, 
we come back with satisfaction to our own; not as 
perfect, not as incapable of abuse, indeed as certain 
of abuse by unscrupulous men to a greater or less 
extent, but as on the whole the best system yet found 
out, in which the advantages most largely prepon- 
derate over the disadvantages, and which has the 
largest capacity for the gradual improvement which 
experience from time to time may prove to be neces- 
sary. The argument of the President therefore, in 
order to be effectual, must go to this extent, that 
the legislatures of our States, with the concurrence 
of the governors, or else by majorities so great as to 
overrule the veto of the governors, may be expected 
to engage, by means of temporary party majorities, 
in the commission of deliberate frauds and wrongs, 
obvious to all mankind, in the organization of those 
political divisions upon which the national govern- 
ment in both its legislative and executive depart- 
ments depends; not in rare instances only, but to 

364 



CHOICE OF PRESIDENTIAL ELECTORS 

such an extent as seriously to affect results. And 
that in this conduct the}- will be sustained by the 
people of their States. Ls this conclusion really 
justified? Is it established by the few instances of 
that sort which on one side or the other have actually 
occurred ; or are they rather to be regarded as excejv 
tions rare enough not to be ver^^ important, and the 
scandal and reproach of which may be justly expected 
to prevent their frequent recurrence? 

Notwithstanding these cases, and they are not, 
mostty, of recent occurrence, it has never been on that 
account proposed that members of Congress should 
be elected by general ticket, although the complexion 
of the national legislature, w'hich would therebj' be 
determined, is of far greater importance to the coun- 
try than the election of President. If the "gerr\^- 
mandering" of districts is not frequent enough to 
make it advisable to elect members of Congress by 
general ticket, why shoidd the ajijirehension of it make 
it necessary to choose the electors in that way? Why 
is there more danger of it in one case than in the other? 
There seems to be no reason to fear that the few bad 
examjiles of this sort will ever be followed to any con- 
siderable or alarming extent. The game is one that 
both sides can plaj^ at. Neither could obtain much 
ultimate advantage from it. And the wrong done by 
one would be sure to be set right by the other, as soon 
as the legislative majorit}' should change. If it be con- 
ceded that four or five districts are to be found in the 
United States out of three hundred and twenty-five, 
which by one political party or another have been 
unjustly constructed, and which its opponent has not 
yet had the opportunity to correct, and if it be further 

36.5 



ORATIONS AND ESSAYS 

conceded that the same thing ma}^ perhaps occur 
again in exceptional cases, can that be regarded, 
upon a candid and thoughtful consideration of the 
whole subject, as outweighing the great improve- 
ment which the proposed change must necessarily 
accomplish? 

While, as has been remarked, abuses may be looked 
for as possible under every feature of every system 
of government, nothing is more deceptive than the 
attempt to anticipate them. Many such that were 
regarded by the wise framers of our Constitution as 
most important to be guarded against have turned 
out in experience to be imaginary. Others, the danger 
of which was not perceived beforehand, have been 
among the first to require remedy. The history of 
our Constitution has been a history of growth and 
consequent change, dictated not by theoretical argu- 
ment but by actual experience hi the present in- 
stance, that test has demonstrated the great and in- 
creasing mischiefs of the method that has prevailed; 
which, without undue confidence or hasty judgment, 
may well be esteemed much more important than the 
small possible drawbacks which will perhaps accom- 
pany the necessarj' remedy. Above all, when the 
onlj^ objection that can be stated to the remedy rests, 
as has been shown, upon the assumption that the 
people of the United States will tolerate, and their 
legislatures will adopt, a course of procedure affecting 
the Federal elections, known to be thoroughly dis- 
honest and corrupt, and destructive to the integrity of 
government. If that assumption is justified as to 
the future of the nation to such a degree that it must 
be accepted as the cardinal consideration in framing 

366 



CHOICE OF PRESIDENTIAL ELECTORS 

our institutions, so that our political system comes 
to be, like the criminal law, only a contrivance for the 
prevention of offences which the majority of the people 
may be expected to engage in if the chance is afforded 
them, what remains to be said in behalf of republican 
government? Does it not rest upon the sole founda- 
tion of the virtue and intelligence of the general mass 
of the people? Is it true that these cjualities can no 
longer be relied upon in our countr\' to prevent de- 
liberate abuses so flagrant as those which the Presi- 
dent deprecates? 

In this, as in so many other things, we must trust 
the American people. Their moral sense maj^ be de- 
pended on to prevent in the future, as it has in the 
past, these ajiprehended abuses from becoming numer- 
ous enough to be dangerous. We may have faitli in 
our countrymen, at least to this extent. When that 
faith no longer remains, popular government must 
come to an end. 

It is not to be hoped that imanimity of opinion on 
this subject will at once be reached. Established 
customs give way slowly. The discussion must con- 
tinue, and will continue, and should be conducted 
with that candor and fairness, and that respect for 
the views of honest opponents, which alone can make 
it useful. When the result in Michigan, and in other 
States in which similar legislation is probable, shall 
have been tested by experience, it is not unreasonable 
to expect that it will commend itself to the general 
good sense of the country. 



Ill 

THE AMERICAN COMMONWEALTH AND 
ITS LESSONS 



2A 



THE 

AMERICAN COMMONWEALTH 
AND ITS LESSONS 



In The Atnerican Commonwealth Mr. Bryce has 
rendered a greater service both to Enghsh and Ameri- 
can readers than in these days of tlie making of many 
books is usually in an author's power. To say that 
there is anything in the work that is new to Americans 
would be to question its truth. But they nuist be glad 
of so good a chance of seeing themselves as others 
see them, and of knowing what a candid, friendly', 
acute, and careful observer from the outside finds 
in their institutions and their life to commend, to crit- 
icise, or to condemn. The photograph is apt to be 
more attractive to those who wish to know how they 
look than to those who care to see how others look. 
National character has so many and subtle elements 
and manifestations, and is the subject of such slow yet 
certain growth and expansion, that the people it be- 
longs to are generally the last to have an accurate 
consciousness of it, or to imderstand what the world 
at large really thinks about them. And it is so often 
that a traveller's account of a country not his own 
is influenced, unconsciously, by the treatment he has 

371 



ORATIONS AND ESSAYS 

met with, and the pleasure or displeasure it has ex- 
cited; the best meant observation is so in danger of 
being hasty or partial, colored by preconceived ideas, 
or guided bj^ what other writers have said on the sub- 
ject, that we may travel through many such volumes 
without obtaining any views more substantial than the 
casual lights and shadows that alternately illumine 
and obscure a landscape, the real features of which 
they only help to disguise. The readers, outside of 
the country described, form either no clear idea of it 
at all, or else a very erroneous and incomplete one; 
while its inhabitants read the book with a feeling of 
gratified vanity or of amused vexation. 

Mr. Bryce's treatise is not of that sort. It is the re- 
sult of prolonged and intelligent study, and thoughtful 
observation of American institutions and American 
society. A study not one-sided, but in which no re- 
spectable authorities seem to have been neglected; an 
observation made in repeated visits, and covering a 
considerable period of time. Perfectlj^ fair towards 
his transatlantic brethren in his temper, not per- 
haps violentlj^ in love with, but certainh^ very friendly 
to, their political methods, and much predisposed in 
favor of democratic principles, he has evidently given 
his mind thoroughly to his work, and has tried with 
much apparent success to reach conclusions that 
should be accurate, impartial, clear, and good-natured. 
If he errs, it is on the American side. One can see 
that he has been well treated there, as English gen- 
tlemen usually are. On the whole, there is no work 
about America that approaches it in fulness, in justice, 
and in discrimination. And consequently there is 
none that has given, and will continue to give to Eng- 

372 



THE AMERICAN COMMONAVE ALTH 

lishmen, so good a knowledge, and so fair a view, 
of the countrjf which is Britain's eldest child and 
greatest foreign achievement, and whose limitless 
future no horoscope can pretend to predict. 

This is high praise, but it is just. The best proof 
that it is so is to be found in the comments it has al- 
ready called out from that class of critics which is 
confident and extreme enough in its own views not 
easily to tolerate any arguments, or, above all, any 
facts that point the other way. Mr. Bryce has been 
charged, on the other hand, with being so captivated 
by democracy and republicanism that he is blind to 
their defects, and views them only through rose-colored 
spectacles. On the other hand, an elaborate article, 
entitled "Errors in Mr. Bryce's American Common- 
icealth," has been published in an American periodical, 
in which his criticisms of the institutions of that coun- 
try are shown to be quite wide of the mark. It is when 
the extremists on both sides assail an author that he 
may best hope to have approached that better ex- 
treme which lies in the middle. 

There is a much more important reason than mere 
curiositj^ why intelligent and thoughtful Englishmen, 
especialh" those concerned or interested in political 
affairs (as who in this country that knows enough 
is not), should wish to obtain a just comprehension 
of the American Republic, and a clear idea of the 
teaching of its experience. It is not only the country 
of their own race, with which intercourse is daily be- 
coming more common, and to which their children 
and kindred are more and more turning in quest of 
homes and careers. It is also the theatre in which 
have been most conspicuously and strdvingly displayed 

373 



ORATIONS AND ESSAYS 

experiments in that sj^stem of universal suffrage 
which has been recently grafted upon the British 
Constitution, and in various offshoots and conse- 
quences of it which with more or less urgency are now 
pressed for adoption in this country. These experi- 
ments have not 3'et been carried on long enough to be 
conclusive in respect to their final success, but long 
enough, and in a field large enough, to be most in- 
structive. No other new continent exists upon which 
the}' can ever be tried again under conditions so favor- 
able. In those features of government the younger 
country is more mature than the older one. The child 
can teach the parent the new waj's of life on which 
the parent has never or only recentlj' entered. Self- 
government is the common property and inheritance 
of both nations, though under different but fast as- 
similating forms, reposing upon the same substantial 
basis. The whole American fabric is founded, in 
the first instance, upon English constitutional prin- 
ciples, English institutions, and English law. All 
that is new is in the application and extension of them, 
in details and political machinery. What has been 
the working out of these principles by the English 
race, under new conditions and circumstances, and 
raider different methods, is best to be studied in the 
light of American political history for the last hun- 
dred years, and in the condition of America to-day. 
And no man is fully qualified to deal with some of 
the recent problems and theories of British politics, 
who has not thoughtfully observed the solution of 
similar problems, and the practical outcome of like 
theories in the other country. It is in the result rather 
than in the a priori argument that their success or 

374 



THE AMERICAN COMMONWEALTH 

failure is best seen, and where is most clearl}- pointed 
out the extent to whicli they may be safely adopted, 
the means by which they are to be made effectual, 
and the safeguards and restrictions with which they 
ought to be surrounded. 

The scale, on which the experiment has been in 
force, is grand. A continent new to civilization, ex- 
tending froiTi the Atlantic to the Pacific, and from 
Canada to the Gulf of Mexico; infinite in the variety 
and practically inexhaustible in the amount of its 
physical resources, natural wealth, and fertility ; with 
an atmosphere at once healthful and stimulating, 
and a scenery so striking and noble as to be in itself 
an inspiration. In the early struggles for the posses- 
sion of the country the dominant race prevailed, while 
the native population disappeared. Both the French 
and Spanish efforts at colonization ultimately per- 
ished, and only served in the end to illustrate the law 
of nature that bestows upon few nations the power 
of procreating other nations, and to still fewer the 
capacity to go down to the sea in ships. Streams 
of emigration from other races and from many other 
countries have steadily flowed into North America from 
the beginning, but, like the rivers that perpetually 
run into the sea without ever affecting the saltness 
of its waters, they have been assimilated as soon as 
received. Whatever a nationality is when it goes 
there, in the second or, at the most, in the third gen- 
eration, all visible trace of its nativity is lost ; it has 
taken on the character of the predominant stock, and 
has become, to all intents and purposes, Anglo-Saxon. 
There is no stronger proof of the innate toughne.ss 
and vitality of that race than its power of absorbing 

375 



ORATIONS AND ESSAYS 

so largely all other races without losing its own native 
and distinctive qualities. If every inhabitant was 
direct in descent from the people of Great Britain, 
America would hardly be more Anglo-Saxon than it 
is, so far as all men born on its soil are concerned. 
England is to Americans the home of their ancestors. 
America is to Englishmen the creation of their chil- 
dren. Americans are what Englishmen have be- 
come by crossing the sea and occupjdng a new con- 
tinent. Englishmen are what Americans would have 
been if they had remained at home. 

Of the extraordinary material prosperity of the 
first centur}^ of American independence, its vast in- 
crease in population, in wealth, in industries, in phys- 
ical achievements, and in popular intelligence, it is 
unnecessary to speak: they are conspicuous before 
the world. How far have these been the residt of the 
system of government, and how far have they arisen 
in spite of it? How far are they the offspring of youth, 
boundless wealth, and almost limitless area, and how 
far of institutions? The nation has done much, 
but how? It has proved much, but what? It has 
set forth manj' things, but how many and what? And 
what is to be the future and the outcome? Is it to be 
the perpetuitj^ of existing institutions or the estab- 
lishment of new ones, better or worse? These are 
questions to be studied by Englishmen as well as bj' 
Americans, and to be looked at candidly and dispas- 
sionatelj'. We are not to be so dazzled by great ma- 
terial success as blindlj^ to adopt all the system that 
has accompanied it, as excellence that has been dem- 
onstrated by experience. Nor should we seize upon 
the defects, the mischiefs, the drawbacks that are to 

376 



THE AMERICAN COMMONWEALTH 

be discovered, as being necessarily inseparable from 
the system and its dominant features, and so condeimi 
the whole. 

The Constitution of the United States, to which 
Mr. Bryce devotes his first volume, underlies the whole 
American theory of government. It is the funda- 
mental and unchangeable law, to which all exercise 
of governmental authority in any department and 
for every purpose is subordinate, and must be made 
to confonn. There is no power in Congress, nor in 
the President, nor in any State government, to disobey 
or to dispense with the requirements or limitations 
of the written instrument, from which all their powers 
are derived, and under which the fundamental rights 
of the citizen are protected. All governmental acts, 
legislative, executive, or judicial, must consist with it, 
or the}- are absolutely void. They may be lawfully 
resisted, and legal redress may be obtained for any 
injury they occasion. This is the first condition and 
characteristic of the American government, which 
Englishmen have to understand and to keep in view 
in the effort to comprehend it. 

The written Constitution was a necessity to the 
American Republic, because it commenced by the 
federation of thirteen independent States, which, 
until the Revolutionary war, though colonies of Great 
Britain, had been as indejiendent of each other, except 
in geographical proi:)inquity, as Canada is of Aus- 
tralia. No such federation, nor any federation that 
would answer the purposes of modern government 
and the various and divers interests it has to deal 
with, could take ])lace without two elements — a written 
and therefore an exact constitution, and a central 

377 



ORATIONS AND ESSAYS 

federal tribunal thereb_y created, in which the con- 
struction and effect of the Constitution should be 
finalh' determined, and its predominant authority 
insured. 

Mr. Bryce seems to think this assumption unneces- 
sary, and instances the case of the Achaean league, 
formed without any written constitution. But he 
has evidently not considered this point as carefully 
as he has most of those he treats, or he would probably 
have reached a different conclusion. Forms and de- 
tails of institutions may be numberless, but there are 
certain principles of government that will be found 
to underlie them all, with the same certainty with 
which the fundamental laws of mechanics control 
the operations of machinery, however elaborate and 
ingenious. A league offensive or defensive might be 
formed between States otherwise independent, which 
should have certain general purposes in an imperfect 
way. Such was the Confederation of the American 
States before the adoption of the Constitution, an ar- 
rangement resting upon mere agreement, destitute 
of permanence beyond the assent of the parties, and 
without means of asserting its control over either. 
But the federation of independent and equal States 
into one nation, which shall be strong enough for 
the purposes of modern government, which shall 
secure to the national organization all the powers 
which its maintenance requires, and still leave un- 
impaired in the several States the sovereigntj' it does 
not require, is a much larger, more complex, and more 
difficult problem, and not to be accomplished without 
a written constitution, comprehensive, exact, and felic- 
itous in its terms, and sagacious in its provisions. 

378 



THE AMERICAN COMMONWEALTH 

A competent tribunal, in which both have a voice, 
must also be provided for the determination of the 
questions of conflicting jurisdiction in the exercise 
of those powers, that must continually arise, how- 
ever clearly the line between them is marked out. 
And such tribunal must be armed with the necessary 
authorit3- for enforcing its decrees. 

An}' other s\'stem of dual government than this 
nuist be one of two things : either a mere arrangement 
by common consent, without authority or means of 
maintaining itself, should that consent be withdrawn; 
or else one of the parties in the union must be made 
subordinate to the other, and subject at all times to 
its superior will — just as a city or other nmnicipality, 
invested by act of Parliament with certain limited 
powers, is always under the control of Parliament, 
and liable to have those j^owers modified, abridged, 
or taken away. There is no such thing as blending 
these two schemes. Either the power of each State 
must be derived from the general or imperial govern- 
ment, and therefore be subject to the action of that 
government, and held only by its sufferance, or, as 
in the case of the American Union, the Federal gov- 
ernment must derive its jurisdiction by surrender 
from the independent States that compose it. Whether 
such surrender, once deliberateh' made and acted 
on in the formation of a national government, can be 
recalled at the pleasure or caprice of those who made 
it is precisely the question that was at the bottom of 
the great American Civil War, and which, it is now 
conceded, was decided in that conflict, as it had before 
been demonstrated in argument, in favor of the per- 
petuity of a government thus created, even against 

379 



ORATIONS AND ESSAYS 

the will of those who once had the option of remaining 
outside of it, or of entering it upon such terms as they 
chose to agree to. 

The apjilication of these simple and obvious prin- 
ciples to the Irish question would clear up much of the 
haze that in the minds of some people appears to sur- 
round it. Without at all entering into the discus- 
sion of the expediency of granting to Ireland what 
is vaguelj' called "Home Rule," it would be very 
useful, in the first instance, to ascertain precisely what 
Home Rule is, and necessarily must be. There has 
been a loose notion prevalent that it might consist 
of powers akin to those of the American States. It 
will become clear to those w^ho reflect upon it that it 
cannot be brought about by the operation of any new 
principle of government, because no such has been 
or is likely to be discovered, but only by the applica- 
tion of old and established principles. Either powers 
of local government, extending to such particulars 
as may be agreed on, must be conferred upon Ireland 
by Parliament, as they have recentlj^ been conferred 
upon municipalities in England, bj^ what is called 
the Local Government Act, and as similar powers to 
a greater or less degree have been always conferred 
upon cities, or else Ireland must be made absolutely 
and permanently independent of England, in all such 
subjects and functions of governmental authority as 
shall be assigned to its control, upon leaving in the 
hands of Great Britain those other subjects and powers 
that belong to national government, and which are 
necessary to its existence and incapable of division. 
If the first of these methods should be adopted, the 
powers conferred on an Irish Parliament would be held 

380 



THE AMERICAN COMMONWEALTH 

only on sufferance, and subordinate at all times to 
the will of the Parliament of Great Britain. They 
could be changed, diminished, increased, or taken 
away by that Parliament at any time. Ireland would 
no more be independent of Great Britain than the city 
of London is. There would be no disunion to begin 
with, whatever might result in the end. The Irish 
Parliament would be like the Local Boards, with 
larger powers, but held bj' a similar tenure. If, on 
the other hand, the Federal principle is adopted, then 
Ireland would be made as independent in its sphere 
of Great Britain as Great Britain in its sphere is 
independent of Ireland. A common tribunal must 
be created to determine questions of conflicting ju- 
risdiction. While the power of the imperial govern- 
ment must be made j^aramount in all those resj)ects 
that are reserved to it, and constitutional means pro- 
vided for maintaining and enforcing it, the govern- 
ment of Ireland must be likewise protected against 
any infringement or interference bv the imperial gov- 
ernment, in the powers and rights that are accorded 
to Ireland. And, as the American conflict has demon- 
strated, the federation and division of authority thus 
created must be permanent. It is of the neces.sary 
essence of the organization that neither party can 
constitutionally overthrow or w4thdraw from it. To 
do that woidd require a reconstruction of the govern- 
ment, and a new constitution — a revolution, peace- 
able, perhaps, but still a revolution. Such is the 
federation of the American States, indissoluble, con- 
stitutional, clearly defined, both States and Federal 
government intrenched in the absolute and independ- 
ent exercise of the powers that are secured to them 

381 



ORATIONS AND ESSAYS 

respective!}', and as strongly precluded from inter- 
ference with those that do not belong to them. 

It requires little reflection to perceive that such a 
government can only be created by a written consti- 
tution. It would be new, fundamental, and would 
need to be most clearh^ and definitely expressed. It 
could not be created by act of Parliament, because 
there could be no such act, however solemn, that Par- 
liament could not at any time modify or repeal. It 
must come about through a new system of govern- 
ment, the result of the mutual agreement of inde- 
pendent powers, each capable of treating with the 
other, and of representing all the people on both 
sides who are to be bound by the result, and charged 
with the duty of supporting and maintaining it, in 
peace and in war, for all time to come. Perhaps the 
discussion of the general subject of Home Rule for 
Ireland would be aided by a clearer understanding, 
to begin with, than many seem to possess, as to which 
of these very different sj-stems it is proposed to adopt. 
Either, whether desirable or not, would be practicable. 
Both cannot be blended. They are widely different 
in their results. 

The circumstances under which the American 
Constitution came into being were extraordinary 
and unprecedented in history. Many nations have 
passed through changes in forms of government, 
sudden or gradual. Indeed, all civilized government 
is only a process of steadfast and silent change and 
movement. The political system that ceases to grow 
perishes. But it has not before occurred to an en- 
lightened people to find themselves without any gov- 
ernment at all, and to have to set to work upon first 

382 



THE AMERICAN COMMOiN WE ALTIi 

principles, not to recast or modify institutions, but 
to create them from the foundation. It almost re- 
alized the Tiction which some juridical writers have 
used to illustrate the origin of fundamental principles, 
where a people in a state of nature is supposed to as- 
semble on a vast plain, to take the first step towards 
the organization of human society. It is true that 
the thirteen States which framed the Constitution 
had each a previous government of its own, based 
upon English principles, and similar to each other. 
But that was no greater advance towards the con- 
struction of a common national government out of 
the union of those States than exists to-daj' towards 
a successful federation of all the countries of con- 
tinental Europe, were such a thing proposed. The 
very independence of each State, the diversity and 
even conflict of their interests in material particulars, 
the natural struggle for an advantage under the new 
government in the protection and advancement of 
those interests, the superiority of the great States, 
the jealousy of the weaker ones, the prejudices of sec- 
tions and localities, were all so many obstacles in 
the way of the formation of a common political .system, 
based upon the consent and agreement of all these 
parties, which must sjieedily perish unless it attracted 
their continued and cordial support, and became the 
object of their patriotic reverence and affection. The 
manner in which tliis new and striking emergency 
was met and dealt with, the character and statesman- 
ship of the men by whom it was effected, and the 
extraordinary excellence that must under whatever 
differences of opinion be conceded to the system of gov- 
ernment which thev established, are not to be under- 

38.3 



ORATIONS AND ESSAYS 

valued. They constitute one of the most remarkable 
chapters in the political history of the world, rendered 
the more striking by the extraordinary success and 
prosperity which has thus far, for whatever reason, 
followed in its wake. It certainly requires a very clear 
perception that there is no Providence which controls 
the affairs of the world, to escape the feeling that 
the whole history of the origin, creation, and adop- 
tion of the Constitution of the United States displays 
an instance of a better than himian intervention. 
Mr. Bryce hardly seems to appreciate the greatness 
of this passage in American liistory, or the nobility 
of the origin, and the splendor of the birth, of the Con- 
stitution he has studied. He says that its features 
were all pre-existent, and were found either in the 
English government or in those of the colonies. Even 
in this he is mistaken. Most of them, it is true, were 
known before. As has been remarked, the whole 
fabric was raised upon the great principles of English 
liberty and English law. But where in any previous 
system of government is to be found the remarkable 
creation of a dual sovereignty between States and 
Federal govermnent, so accurately divided, so per- 
fectly harmonized and adjusted, each independent, 
and both perfectly blended? Where is to be found the 
novel and striking jurisdiction with which the Supreme 
Court of the United States is invested, the great bal- 
ance-wheel of jrolitical government, without being itself 
a political machine, the arbiter of all constitutional 
rights between the States and the national govern- 
ment, and between the citizen and either? These 
two great features, indispensable to the working of 
the Constitution, would be found upon a re\aew of 

384 



THE AMERICAN COMMONWEALTH 

political history to be altogether original. The first 
has been only distantly and imperfectly approached, 
the second never before attempted. And these two 
are the particulars, beyond and above all others, in 
\\liich the Constitution has been a complete and un- 
questioned success. Whatever else has been criticised 
or objected to, or has failed to fulfil its promise, what- 
ever else has required or has been thought to require 
amendment, these great original provisions have re- 
mained, not merely unimpaired but unchallenged, 
even by the boldest and most radical reformer. Other 
muniments and safeguards, less vital and less promi- 
nent, might be pointed out in the Constitution, which 
are also quite new and which have stood the hard 
test of experience. 

But even were there no new factor in the machinery, 
and no motive power unknown before, the combina- 
tion of those that have been thus brought together, 
in forms and connections so new, and results so ben- 
eficial, is itself originality of the highest order. It is 
not novelty of materials or of process that usually 
gives character or value to an invention, so much as 
the new combination and use that are made of them. 
It does not diminish the originality of the invention 
of the telegrai)h that electricity was known before, 
and was known to pass rapidlv along a conductor, 
nor of the locomotive, that steam and the principal 
means of emi)lo\'ing its j^ower were not then for the 
first time employed. Political, like physical, ma- 
chinerj^ may be as great and as original in its com- 
bination and its results as in the first employment 
of its constituent parts. 

It is not always easv to measure the real stature of 
2B " " .^.S.s 



ORATIONS AND ESSAYS 

men of a former period, particularly in political life, 
where the greatest work affords only partial evidence 
of its processes. Human capacity and power are so 
far relative, and depend so much upon their com- 
parison with contemporaries, and distance some- 
times lends so much enchantment to the view, that it 
is difficult to estimate accurately how great were the 
great statesmen and soldiers and orators of past times. 
Whether we should be as much appalled by the aspect 
of the Roman senators as the Gauls were, if those 
legislators were now in session at Westminster, may 
well enough be questioned. Doubtless we might be, 
if we were Gauls. But fortunately for the fame of 
the authors of the American Constitution, the record 
of their discussions and deliberations, what they 
proposed, what they said, as well as what they finally 
did, is preserved. We can read and study it at leisure, 
and without any glamour or enchantment upon it. 
It is necessarily in some respects an imperfect record; 
we can readily perceive that it falls short; yet as it 
stands it is enough. And it is plain matter of un- 
doubted history that a body of men of that number, 
assembled on an occasion so important, in states- 
manship and political science so profound, and in 
patriotism and personal disinterestedness so genuine 
and clear, have not often, if ever, adorned history 
with their record. The theories of government in all 
their applications, and the advantages and disad- 
vantages of the various forms in which they have 
been displaj^ed, were discussed with a breadth of 
view, a sagacity, a masterj^ of fundamental principles, 
rarely exhibited in a deliberative assembly. These 
discussions, and the admirable essays of Hamilton, 

386 



THE AMERICAN COMMONWEALTH 

Ja}', and Madison, in sujiport of their conclusions, 
speak for themselves, and show what manner of men 
their authors were. There is not much belter read- 
ing on the subject available, though a hundred years 
are gone since they were written. Nothing is easier 
than to invent constitutions. They were as plentiful 
as they were useless after the French revolution. 
They can be furnished in any quantity, at a reasonable 
rate per folio, by the dabblers who are more numerous 
in the science of politics than anywhere else. But 
to form an entirely new system of government for 
a great country, that shall not only conform to sound 
principles and find snjiport in reason and the deduc- 
tions of experience, but shall command the general 
assent of a nation, and prove in actual trial a success 
that brings peace prosi)erity, and happiness in its 
train — this is an achievement second to none that 
has ever engaged the e.xertions of the human intellect. 
One is led to wonder how such men were trained, 
in the infancy of a country and the beginning of a 
new civilization; what had been the studies, the em- 
ployments, the associations that led to such results. 
Perhaps it goes to prove that great men are the product 
of great emergencies and great occasions ; that thought 
and reflection are mightier than erudition; that the 
highest thinking is found in the plainest living; that 
there are qualities in the youth of a country, as in the 
youth of a man, too fine and noble to survive ma- 
turity, which disappear with a larger contact with 
the world, and a more chastened experience. 

To whatever conclusion we may be led in respect 
to the American government, its excellence, its de- 
fects, its present or its probable future, one thing at 

,^S7 



ORATIONS AND ESSAYS 

least must be conceded as a matter of history as well 
as of criticism, that the Constitution on which it is 
founded, in itself and in the circumstances of its author- 
ship and adoption, is on the whole the most remark- 
able document, the greatest single political achieve- 
ment, and the most potent influence upon mankind in 
tlie century that followed it, that history gives any ac- 
count of. The world has seen great conquests, great 
revolutions, great results of long and silent growth, 
but no such piece of deliberate, independent, immediate, 
and successful political creation. It is a production 
very singular also in its brevity and comprehensive- 
ness. It is easy to be general, btit not at the same 
time to be comprehensive and accurate. It is easy 
to be brief (though in these daj\s one would not readily 
think so), but not easy to be at the same time full and 
sufficient. The terse and simple language of the Con- 
stitution has stood the test of time and experience, 
and has passed through the crucible of judicial con- 
struction and interpretation, with a success almost 
unexampled. Only a single and minor amendment 
has ever been thought necessary in its terms or phrase- 
ology. 

Nor, though the instrmnent provides for its own 
amendment, have many of its provisions required to 
be changed. The one just alluded to was made bj^ 
general consent, to render clear its undoubted intent. 
Ten others only added the "Bill of Rights," which 
was thought at the time the Constitution was adopted 
to be unnecessarj^ to be expressed. One amendment 
was found advisable in respect to the method of electing 
the President and Vice-President. These were all, 
until the close of the Civil War brought about the final 

388 



THE AMERICAN COMMONWEALTH 

abolition and exclusion of slavery and its political 
consequences, the greatest obstacle the Constitution 
had encountered in its origin, and in all its subse- 
quent history. 

But only a very slender knowledge of the American 
Constitution is to be derived from reading it, even 
in all the light furnished by the discussions and criti- 
cisms that attended its origin, and brought about 
its final ratification in 1789. Its text only enunciates 
principles, provides governmental machinerj^ and 
erects safeguards. Its subsequent history renders it 
clear that the real authorship of the Con.stitution 
was less in its compositit)n than in its construction. 
That grave questions as to the true meaning and ex- 
act application of its terms should immediately and 
constantly arise was inevitable. They must alwa}\s 
continue to arise as long as it remains in force. No 
precedents e.xisted in the light of which they could 
be determined ; the whole subject was new, and the 
disputes were such as elicited the gravest difference 
of opinion among lawyers, judges, and statesmen. 
Few of the leading controversies have been decided 
with a unanimity of opinion on the part of the Supreme 
Court. Looking back now over the history of the 
Constitution, it is easy to see how widely different 
might have been these conclusions, and the char- 
acter of the institutions that have been moulded and 
built up by their aid. The America of to-day would 
have been a very different country had the construc- 
tion of the Constitution fallen into less competent 
hands, and been administered with a sagacity less far- 
.seeing and imerring. Indeed, the Constitution itself 
might readilv have been brought to an end within its 



ORATIONS AND ESSAYS 

first half-century, by interpretations that were strongly 
contended for, and supported b}' plausible and some- 
times forcible arguments. The formation of the Con- 
stitution of the United States, during the period in 
which it took its decisive shape, was principalh' the 
work, as Mr. Bryce points out, of John Marshall, 
Chief Justice of the Supreme Court of the United States, 
a very great judge, and beyond doubt the greatest 
constitutional lawyer who has left his impress upon 
jurisprudence. He presided over that court from 
l8oi to 1835, delivered its opinions in the great ma- 
jority of cases in which constitutional questions were 
involved, and was the master mind in dealing with 
and determining them. To him, more than to all 
others, are the Americans indebted for raising their 
Constitution from a doubtful experiment into a har- 
monious, complete, and permanent system of govern- 
ment. The constitutional law of the United States, 
therefore, is now to be sought, not mereh^ in the text 
of that instrument, but in a long series of judgments 
of the Supreme Court of the United States, the re- 
sult of which has been presented in the elaborate 
treatises of Kent, of Story, of Cooley, and others of 
less celebrity. 

It is not every question of constitutional construc- 
tion, however, that can be brought before that high 
tribvmal, but only such as can be presented by an ac- 
tion at law between litigants; in other words, those 
points which touch in their operation the rights of 
the individual. These, it is true, will be found to be 
the great majority. But there are certain political 
questions that arise under the Constitution, not af- 
fecting individuals or private rights, but altogether 

390 



THE AMERICAN COMMONWEALTH 

national in their effect, which depend for their determi- 
nation upon the action of Congress, and which may 
therefore be more or less affected by the views of polit- 
ical parties and the exigencies of party requirements. 
Even in these discussions the paramount weight of 
the opinion of the Sui)reme Court bearing upon them, 
and the general principles of construction it has adoi)t- 
ed, and which have become intrenched in public opin- 
ion, have a great and frequently' a controlling force. 

Mr. Bryce has not failed to observe, also, that be- 
sides the construction and effect that have been given 
to constitutional provisions by the action of the Su- 
preme Court and of Congress in their respective si)heres, 
still another process of formation has been going for- 
ward under the operation of jiarty macliinery, wliich 
has in some particulars worked important changes 
in the original theory and intent of the Constitution 
itself. These have marked not a construction of, but 
a dejiarture from, that intent. The most noticeable 
and much the most important of them is seen in the 
method of the election of the President. By the Con- 
stitution this was to be effected through what was 
called an electoral college. Each State was to choose 
certain electors once in four years, equal in number 
to the Senators and Representatives to which it is 
entitled. These electors were then to meet in their 
respective States and to cast and transmit to the ca])i- 
tal at Washington their votes for persons to fill the 
offices of President and Vice-President. And in ca.se, 
upon the opening and counting of these ballots by 
Congress, it should ai)pear that no person had a ma- 
jority of all the votes cast for President, the election 
should be made by the House of Representatives out 

391 



ORATIONS AND ESSAYS 

of the three candidates who had received the highest 
number of votes. And if no person had received a ma- 
jority of all the votes for Vice - President, that officer 
should be elected b3' the Senate. In its original draft the 
Constitution had i)rovided that the electors should 
vote for two persons, the one receiving the highest 
number of electoral votes to be President, and the 
person receiving the next highest to be Vice-President. 
And the same result was to follow if the election should 
be made by the House. But this was early changed 
by an amendment before alluded to. It was contem- 
plated by the Constitution under this provision that 
the electors should actually choose the President, 
and such was the method employed during the first 
two Presidential elections after the adoi)tion of the 
Constitution. But immediately afterwards the polit- 
ical parties began to nominate their candidates for 
President and Vice-President, and then to designate 
electors in the respective States, not to choose those 
officers, but merely to vote, in accordance with a 
previous pledge, for the candidates designated before- 
hand by the party to which the electors belonged. 
The office of elector thus sank from a very important 
to a very insignificant one. Instead of selecting and 
electing a President in their own discretion and judg- 
ment, they have onlj' to register votes pledged in ad- 
vance. The real election is by popular ballot, de- 
termined, not by the aggregate of suffrage, but by 
the residts in the States, each State countuig for the 
successful candidate its number of electoral votes. 
This visits upon the country the tremendous strain, 
interruption, and excitement of a Presidential election 
once in four years — a pandemonium of clamor, up- 

39^ 



THE AMERICAN COMMONWEALTH 

roar, vituperation, and corruption. As has been seen, 
it is a perversion of the Constitution under wliich this 
has become a popular election, and all the other mis- 
chiefs have followed in its train. The event has strik- 
ingly illustrated the wisdom of the Constitution in 
attempting to provide against it. How it could now 
be escaped it is not easy to see. Whether the effort 
will ever be made is, so far as can now be perceived, 
doubtful. That thoughtful minds are turning towards 
an extension of the Presidential term, relieving the 
coiuitry for a somewhat longer period from the con- 
fusion and mischief of the election, and then taking 
away the eligibility of the President for re-election, 
is alreadj^ plain. That would mitigate in some degree 
an evil the cure for which does not seem likely of im- 
mediate discovery. That the President may be re- 
elected has proved a very great impediment to his 
usefulness. If he is cajiable of scheming for it at the 
expense of the public service, that is sacrificed for his 
personal ambition. If inca})able of this, the suspicion 
of it, or at best the persistent accusation of it by liis 
political opponents, hampers his influence and di.s- 
credits his motives at every stej). Of the few particu- 
lars in which the provisions of the Constitution have 
worked badly, this is the worst, the shortness of the 
executive term, and the facility for evading the true 
intent of the instrument and throwing the election 
into the hands of the people. It is very remarkable 
that so few of the provisions of the Constitution have 
failed of success, and how largel}' they have justified 
the foresight of their authors and the wisdom of those 
who explained and limited their meaning and applied 
them to practical affairs. 



ORATIONS AND ESSAYS 

But the great and decisive question that has been 
and is to be encountered by the American RepubUc, 
and upon which it must ultimately stand or fall, is 
that of the practicability, as the foundation of gov- 
ernment, of the principle of universal or manhood 
suffrage. This is equally the question of the future 
in England. We are near enough already to universal 
suffrage, whether wisely or not, to see that its com- 
plete accomplishment is only a matter of short time. 
Virtually it may be said to prevail here alread}^ We 
are not, therefore, merely watching, with an interested 
curiosity, experiments in America with which we 
are not practically concerned. We are witnessing 
there, a little in advance and under circumstances 
and conditions somewhat different, and certainly 
much more favorable, the progress of a political move- 
ment of the highest importance, involving English 
institutions almost or quite as much as American. 
And if it can be expected to be established with more 
success and less mischief in one country than in the 
other, that country is not ours. It is a great proof 
of Mr. Brj^ce's discrimination that in what he has 
said in favor of the permanence of American insti- 
tutions he has given much prominence to the peculiar 
conditions under which they exist, and to the striking 
and characteristic qualities of the people upon whom 
they depend, resulting from those conditions, as well 
as from the institutions themselves. He devotes manj" 
chapters to this subject, and makes it prominent that he 
is dealing, not with a commonwealth or form of gov^ern- 
ment in the abstract, but with the American common- 
wealth in particular, composed not only of institutions, 
but of men, and not only of men, but of American 

394 



THE AMERICAN COMMONWEALTH 

men on their own soil, and subject to their own creative 
and modifying influences. The larger question, what 
is the ultimate promise of the principle of universal 
suffrage anywhere, is considerably narrowed, though 
by no means disposed of, by the qualification that 
considers it only as existing in America. 

It is obvious enough that this question lies at the 
root and foiuidation of all free government, where 
it either exists or is likely to come to jmss. That 
once determined, other questions are easily settled, 
because they are principally matters of detail and ex- 
l)erience. There are doubtless other features in the 
American system that have already been found to 
need modification. But tliat is easy to be effected 
when the nece.ssity is once clearly perceived. Indeed, 
as human society advances and human interests 
increase, there is no form of government that will not 
have to conform itself gradually to the other changes 
of human life, in a world of which the fashion per- 
petually passeth away. But who shall constitute the 
constituency in a country the government of which 
is representative, is the crucial question. Whetlier 
qualification for such a constituency is born with 
every man, and by parity of reasoning with every 
woman, or whether il is a privilege to be acquired 
in the right way and held by those who show them- 
selves entitled to it, is the question this world has yet 
to settle, through whatever experience the settlement 
ma3^ come, and which so completely imderlies the 
whole structure of scwiety that it can neither be over- 
looked nor evaded, though it may doubtless be yet 
longer postponed. 

The theory of modern political reformers, when 



ORATIONS AND ESSAYS 

distinctl}^ stated, is that the right of suffrage is one 
of the natural rights of man. born with him, Uke the 
rights to Hfe, to hberty, and to property; and that 
manhood, that is to say physical existence and the 
attainment of a fixed age, are the only conditions 
requisite to becoming a voter in all public elections. 
A still more advanced class assert that this right be- 
longs to womanhood as well as to manhood. As all 
other natural rights are conceded to be irrespective 
of sex, it is difficult to perceive why this one should 
be an exception. And as they also take effect from 
birth, and not at a certain age fixed by law, no good 
reason is apparent why this should be deferred till a 
conventional time, nor why a child old enough to un- 
derstand the nature of suffrage and to exercise it with 
intelligence should not be permitted to vote, just as he 
is allowed to testify as a witness in a court of justice, 
irrespective of the attainment of any precise age, if 
able to comprehend the nature of an oath. The same 
line of argument would compel the extension of the 
right of voting to foreigners as soon as they become 
subjects bj^ taking up their residence in the country, 
without even the necessity of any process of naturali- 
zation. And, as pointed out by Mr. Bryce, this privi- 
lege is already extended in some of the American States 
to foreigners as soon as they become inhabitants. 
In all these respects, if the right to vote is a natural 
right, the logical consequences of that proposition 
must be accepted. And neither sex, nor age, nor place 
of birth, an3f more than race or color, can be allowed 
to restrict it. 

But is the proposition true? The ground upon 
which the recognition of the natural rights stands 



THE AMERICAN COMMONWEALTH 

is that they are necessarj^ to human happiness and 
to the existence of organized society. ReHgion teaches 
and the general intelhgence of mankind accords 
them, and governments exist principally for their pro- 
tection. Without such ])rotection the strong would 
destroy, enslave, or distress the weak, and every man's 
hand would be against his neighbor. But the right 
to vote for a member of Parliament is not essential 
to human hajipiness, an^- more than the right to be 
a stockholder in the Bank of England, or a freeman 
of the city of London. The individual can get on 
well enough without it. Is it, then, neces.sary to the 
existence or well-being of society? That must plainly 
depend upon the qualification and character of the 
voter. It is not the deposit of the vote that is desir- 
able ; it is the intelligence and will that dictate it. 

It is widely denied that any political rights or jn-ivi- 
leges should be inherited. No matter how illustrious 
the ancestry, or how great their services to the State, 
it is .said that their children should stand upon their 
own merits and not on those of their j)arents. But 
the right to suffrage is not even inherited. It would 
be born with the individual equally, if it were possible 
that he should come into being without parents, like 
Topsy in the story. 

It cannot be reasonably questioned that this is not a 
natural but a political privilege, a right not of man- 
hood or of womanhood, but of citizenship — that it is 
maintained onh' for the good of society, and that 
society must determine how far it shall be exerci-sed, 
by whom, under what conditions and limitations, 
and for what purposes. It has never stood or been 
claimed to stand upon any other foundation. 

397 



ORATIONS AND ESSAYS 

The question then recurs, what are the hniits that 
should be set by societ}^ to the exercise of this privilege, 
and to whom should it be accorded? This question, 
as has been remarked, underlies all attempts at free 
government. It is idle to discuss forms of represent- 
ative government and its political machinery and 
methods, until it is first determined who are to be the 
constituency. And experience is demonstrating with 
greater clearness every day that this is the critical 
question, on the solution of which the success of all 
such experiments must ultimately depend. 

Nor is this question to be evaded ujton the theory 
that it is now too late to discuss it. Man}' people seem 
to regard a democracy, once established, as final and 
beyond revocation; the only political institution that 
is permanent, and therefore the ultimate and inevi- 
table destiny of human society. But democracy is, 
after all, but a form of government. Those who es- 
tablished it can destroy it. If it becomes a despotism 
and is found intolerable, is it nevertheless to be per- 
mitted to continue? He must have read the historj^ 
of the Anglo-Saxon race to little purpose who has 
failed to learn that no tyranny can be established 
over it that will not in due time and by some means 
be overthrown. Its people cannot be reduced to slavery 
or to permanent oppression by any rulers, many or 
few, or luider any system, pretence, or theorj' what- 
ever. It is not always easy to see how, when, or by 
what means, or through what experience, peaceable 
or. otherwise, such a revolution will occur, whether it 
will come through moral or through physical force, 
who will be the leader, or what the final provocation 
that overcomes forbearance. It is enough to know 

398 



THE AMERICAN COMMONWEALTH 

that whatever reform or change in any cxistinj); in- 
stitution really comes to be generally seen and felt 
to be necessary, will certainly take place in some way 
and at some time. No New Zealander will ever sit 
upon any bridge in England or America for want 
of the existence of an adequate and tolerable, as well 
as free, system of government. 

It may be conceded that a free people will never 
recur either to an absolute government or to that 
of an aristocracy or an oligarchj-. The right of suf- 
frage will never be made hereditary, nor the exclusive 
privilege of familv, or wealth, or talent, or culture. 
It will never be restricted to the better class, or the 
upper class, or to any other small body. These clas.ses 
are not the only ones who have an interest in the gov- 
ernment, nor have they any monopolj' of the virtue, 
the intelligence, or the patriotism that should ac- 
company the exercise of a voice in it. Suffrage in 
free and representative government should be, and it 
is therefore fair to assume always will be, general, 
and the privilege of a large cla.ss — a class to which 
every man of ordinary intelligence and character 
may belong if he will; a privilege within the reach 
of every person, whatever his parentage, who will 
make onW a fair exertion towards an honest and re- 
spectable life. Thus far, at least, no experience yet 
available in either country seems to call for anj' limita- 
tion upon the right of suffrage on occasions proper for 
its exercise. But the question remains whether the 
privilege should be still further extended ; whether to 
the class thus described should be added the criminal, 
the vagabond, the pauper, the vicious, the idle, and 
the illiterate; whether, in short, any qualification 

399 



ORATIONS AND ESSAYS 

should be required except physical existence, or any 
limit be imposed except that of life; whether the right 
should be universally attainable, or should be uni- 
versal without attainment. In America, suffrage has 
been and is unlimited. Every American - born man 
black or white, twenty-one years of age, is a voter 
in all elections, and every foreigner, who has passed 
through the cheap and easy form of naturalization, 
which amounts to so little, requires so little, proves 
so little, and is so easily and universally cheated, that 
it might quite as well be dispensed with altogether. 
The enfranchisement of women on the same terms 
is loudly clamored for, has in some instances been 
conceded, and is probably not far off. The rights 
of children of the age of discretion, old enough to con- 
tract marriage, to testify as witnesses, and to be re- 
sponsible for crime, will doubtless receive attention 
as soon as those of women are established. And 
some of the results that are beginning to be apparent 
are disclosed in Mr. Bryce's book. He endeavors, 
with considerable ingenuity, however, to escape the 
conclusion that the results are to be attributed to that 
cause, and goes into a labored defence of the wisdom 
of the masses in political affairs as compared with that 
of the clasvses. But that is not the question. Whether 
the general judgment in such matters of the intelligent 
mass is better than that of a limited and more highly 
cultured and instructed class may be debated on its 
own merits when it comes up for consideration. That 
is not the present inquiry, because it will not be pro- 
posed to limit the right of suffrage to any such class 
or to deprive the general mass of a share in it. The 
question is, Shall there be excluded from that bodj' a 

400 



THE AMERICAN COMMONWEALTH 

certain lower stratum easily defined, who can con. 
tribute no element of value to the general result, but 
who are a constant and increasing source of mischief, 
of danger, and of corruption? Mr. Bryce, with all his 
favorable impressions of American institutions, is com- 
pelled by candor to point out that in such a contest 
a man of the highest order will not often be a candidate, 
and can hardly ever be elected. The office is great, 
but can rarely be filled by a great man. His com- 
parison of the successive incumbents shows that the 
exceptions since the early days of the Republic have 
been hardly numerous enough to prove the rule ; though 
upon what principle he enumerates General Grant 
among the great Presidents it is not easy to under- 
stand. To have a chance of success a candidate must 
be not only acceptable to the workers of political ma- 
chinery, interested, not to give the country a good 
President, but to obtain one the3' can themselves con- 
trol, but he must also appeal successfully to all the 
ignorant prejudices of the lower classes and, to a con- 
siderable extent, foreign classes of voters. It is very 
obv'ious that under the influences that have lately 
been brought to bear more and more decisively upon 
an American Presidential election, its methods, its 
candidates, and its results, it must continue steadily 
to be depreciated while the system remains what it is. 
Mr. Bryce also points out that the better class of men in 
the United States generally withdraw and abstain 
from public life, leaving political affairs to those who 
make them a profession, or rather a trade; that the 
quality of the national as well as of the State legis- 
latures has therefore very much deteriorated in char- 
acter, ability, and dignity ; and that the corruptions, 
2C 401 



ORATIONS AND ESSAYS 

robberies, and scandals of municipal government 
have reached a point never before seen in the history 
of civilized government, and show no signs of im- 
provement. 

On this subject he is very guarded in his statements, 
but leaves it sufficiently clear that, while what he 
discloses is bad enough, the whole truth is worse. 
He says: 

"It is particularly hard to discover the truth about 
Congress, for few of the abimdant suspicions excited 
and accusations brought against Senators or members 
of the House have been, or could have been, sifted to 
the bottom. Among four hundred men there will be the 
clean and the unclean The opportunities for private 
gain are large, the chances of detection small; few 
members keep their seats for three or four successive 
Congresses, and one-half are changed every two years, 
so the temptation to make hay while the sun shines 
is all the stronger. . . . There are several forms 
wliich temptation takes in the Federal legislature. 
One is afforded by the position a member holds on a 
committee All bills and many resolutions are re- 
ferred to some one of the conunittees, and it is in the 
committee-room that their fate is practically decided. 
In a small body each member has great power, and 
the exercise of power is safeguarded by little respon- 
sibility. He may materially advance a bill promoted 
by an influential manufacturer, or financier, or rail- 
road president. He may obstruct it. . . . The tariff 
on imports opens another enormous sphere in which 
legislative intervention affects private pecuniary in- 
terests; for it makes all the difference to many sets 

402 



THE AMERICAN COMMONWEALTH 

of manufacturers whether duties on certain classes 
of goods are raised or maintained or lowered. Hence 
the doors of Congress are besieged by a whole army 
of commercial or railroad men and their agents, to 
whom, since they have come to form a sort of profes- 
sion, the name of lobbyists is given. Many con- 
gressmen are personally interested, and lobby for 
them.selves among their colleagues from the vantage- 
ground of their official positions. Thus a vast deal 
of solicitation and bargaining goes on. Lobbyists 
offer considerations for help in pa.ssing a bill which 
is desired, or in stopping a bill which is feared. Some- 
times a member brings in a bill directed against some 
railroad or other great corporation, merely in order 
to levy blackmail upon it. This is technically called 
a strike. . . . That the Capitol and the hotels at Wash- 
ington are a nest of such intrigues and machinations 
while Congress is sitting is admitted on all hands; 
but how many of the members are tainted no one 
can tell. ... In the end of 1883 portions of a cor- 
respondence in the years 1876-78 between Mr. Hun- 
tington, one of the proprietors and directors of the 
Central Pacific Railroad, who then represented that 
powerful corporation at Washington, and one of his 
agents in California, was published ; and from these 
it appeared that the comjiany, whose land grants 
were frequently threatened by hostile bills, and which 
was exposed to the competition of rival enterijrises 
which Congress was a.sked to sanction, defended itself 
by constant dealings with Senators and Rej)resenta- 
tives, dealings in the course of which it offered money 
and bonds to those whose support it needed. . . . The 
recently issued report of the United States Pacific 

403 



ORATIONS AND ESSAYvS 

Railway Commission says of these transactions: 
' There is no room for doubt that a large portion of 
the sum of $4,818,000 was used for the purpose of 
influencing legislation, and of preventing the passage 
of measures deemed to be hostile to the interests of 
the company, and for the purpose of influencing elec- 
tions.' It is impossible to read the extracts from the 
letters written by Mr. Huntington himself without 
reaching the conclusion that large sums were ex- 
pended by him in efforts to defeat the passage of various 
bills pending in Congress." 

Tlie character of some of the State legislatures, as 
described by Mr. Bryce, is even worse. Corruption 
in some of them has become intolerable and notorious, 
and controls almost all the important features of legis- 
lation. He says: 

" It is hard to form a general judgment regarding 
the State legislatures, because they differ so much 
among themselves. Those of Massachusetts, Ver- 
mont, and several of the Northwestern States, such 
as Michigan, are pure, i.e., the members who wovdd 
take a bribe are excessively few, and those who would 
push through a job for some other sort of consideration 
a small fraction of the whole. On the other hand. 
New York and Pennsylvania have so bad a name 
that 'people profess to be surprised when a good act 
passes, and a strong governor is kept constantly 
at work vetoing bills corruptly obtained or mischiev- 
ous in themselves. Several causes have contributed 
to degrade the Legislature of New York State. It 
includes, besides New York and Brooklyn, several 

404 



THE AMERICAN COMMONWEALTH 

smaller ring-governed cities whence bad members 
come. . . . There are many honest men in the As- 
sembly, and a few are rich men who do not need a 
douceur, but the projjortion of tainted men is large 
enough to pollute the whole lump. . . . Each great 
corporation keeps an agent at Albany, the capital of 
the State, who has authority to buy off the promoters 
of hostile bills, and to employ the requisite profes- 
sional lobbj'ists. . . . This sort of thing now goes 
on, as it has lately gone on, in several other States, 
though nowhere on so grand a scale. Virginia, Mary- 
land, California, Illinois, Missouri, are all more or less 
impure; Louisiana is said to be now worse than New 
York." 

A far lower depth of corruption, jobbery, and public 
plunder is reached in certain of the great cities in 
their municipal governments. In one or two of them 
the problem of obtaining the worst [)ossible administra- 
tion for the greatest possible cost appears (o have 
been successfully solved. Decent men abstain to a 
large extent from any participation in it, and the com- 
munity submit to it as an evil practically without 
remedy. Occasionallj' some villany of unusual i)ro- 
portions rouses them to a spasmodic and temporarj^ 
effort that produces for the time beneficial results. 
But the old condition of things is soon established 
again by the jioliticians, and goes on as before. 

Those who are curious to learn the details and proc- 
esses of municipal plunder, carried on under the 
guise of government, in such cities as New York and 
Philadelphia, can peruse for themselves the various 
chapters of Mr. Bryce's book devoted to the subject. 

405 



ORATIONS AND ESSAYS 

Those entitled "The Working of City Government," 
"Rings and Bosses," "Corruption, and the War 
against Bossdom," in Vol. II., and "The Tweed 
Ring," " The Philadelphia Gas Trust," and " Kearney- 
ism in California," in Vol. III., will be found especially 
instructive, though by no means the only parts of the 
work in which facts of this sort play a prominent part. 
Apart from the results of actual corruption in leg- 
islative bodies, many of the practical consequences 
of the transfer of the functions of govermnent to an 
inferior class have not been alluded to by Mr. Brjxe, 
but are very obvious to those who have given much 
attention to American politics, or who read American 
newspapers. They are only such as might naturally 
be expected. Congressional legislation has been very 
generally controlled by partisan and electioneering 
considerations. ]\Ieasures readily pass which ap- 
peal to the prejudices or the greed of the constituency, 
and have scarcely any hope of success, however meri- 
torious, if they have nothing but their merits to com- 
mend them, and especialh' if they are favored by the 
better class of people. The amount bestowed in pen- 
sions upon those who served in the Civil War, their 
parents, widows, children, and relatives, is almost 
incredible. The annual expenditure for this pur- 
pose has now reached the sum of nearly twentj' million 
pounds. It has steadil}" increased ever since the 
clo.se of the war, twentj^-four j'ears ago, and is still 
increasing. It is likely to reach a far higher figure 
when the new measures that are now proposed and 
urged are adopted, as they doubtless will be. Hardly 
any member of either house has the courage to vote 
against these schemes, lest he offend and lose for him- 

406 



THE AMERICAN COMMONWEALTH 

self or his party "the soldier vote." Agents who 
pursue the business of obtaining pensions for ai> 
plicants are continualh^ bringing forward proposals 
for new pensions, and for the increase of previous 
ones, and organizations of ex-soldiers are j)ressing 
them. It is well understood that a considerable 
proportion of the pensions now paid are to those who 
are not entitled to them, even under the loose and 
liberal pension laws. A great army of pensioners 
for life upon the national treasury, many of them 
fraudulent, has thus been created, and is fast in- 
creasing. The enormous surplus in the treasurJ^ 
arising from the protective system of heavy duties 
on all imports, has enabled the government to meet 
these demands without special taxation for the pur- 
pose. But the increase in the jv/ice of all the neces- 
saries of life that results from these duties is a far 
more burdensome, though less appreciable, method 
of taxation than a direct tax would be, because the 
amount raised is much greater than that realized by 
the government. 

All efforts towards a reduction of this surplus reve- 
nue, or even to prevent the further increase of it, which 
is rapidly taking place, have proved unavailing. It is 
not only the fruit of an excessive indirect taxation 
upon the necessaries of life, but is a grave menace 
to the financial condition of the country, by accu- 
mulating in the treasury an immense amount of 
money for the expenditure of which there is no war- 
rant, and which is thus withdrawn from circulation. 
Its existence at the .same time debauches and demoral- 
izes legislation with the temptation of a superabun- 
dance of revenue tliat ought to be dispersed. Membeis 

4«7 



ORATIONS AND ESSAYS 

of Congress profess to be in favor of measures for a 
reduction. But no concurrence in any particular 
scheme, and no practical or efficient action of any 
sort, can be obtained, lest some popular prejudice 
be unwittingly aroused or offended, or some available 
cry be afforded to ojiposing demagogues. So a sys- 
tem of taxation continues, which raises an amount 
of revenue far beyond the possible uses of the govern- 
ment, and piles up in the treasury an enormous, in- 
creasing, and useless surplus. Some part of it has been 
employed in purchasing at a high premium the gov- 
ernment debt, not due or payable for many years to 
come, thus pajang a considerable price for the privilege 
of discharging the debt before it is due, and when the 
creditors do not desire to receive it, though the in- 
debtedness thus anticipated does not bear more than 
four per cent, interest. 

The States in which silver is produced, and whose 
votes are important in Presidential elections, are also 
able to maintain a measure by which the government 
is compelled to purchase and coin two millions of 
dollars of silver per month, amoimting to nearly five 
millions of pounds per year. This coinage cannot 
be forced into circulation, because its bulk renders its 
use as a circulating medium impossible, and because 
its sterling value is considerably less than its face. 
It is therefore stored in vaults and buildings erected 
for the purpose, and has been accumulating in this 
manner until the government now have in store about 
fifty millions of pounds. There is not a financier in 
America who does not perceive that the ultimate re- 
sult must be a great financial disaster. This has been 
made very clear in many publications, and a suspen- 

408 



THE AMERICAN COMMONWEALTH 

sion of tliis coinage has been urged by successive 
Presidents. It is impossible, however, to obtain from 
Congress anj^ repeal or suspension of this measure 
of Congressional malversation. Many other par- 
ticulars less conspicuous, but extremely mischievous, 
might be added to the statements in Mr. Bryce's book. 
Such a measure as the International Copyright Bill, 
though earnestly pressed, it has been found imjjos- 
sible to pass, though no specific objection to it is stated. 
Many members are totally indifferent to measures of 
that sort, and fearful, if they vote for them, they may 
perhaps encounter obloquj' for supporting what may 
turn out to be unpopular. 

The salaries and compensation of almost all gov- 
ernment officers of high rank or conspicuous position, 
executive, judicial, or diplomatic, are maintained, 
in spite of all efforts to increase them, at a rate far 
below the necessary expenses of the incumbent, not- 
withstanding the overflowing condition of the treas- 
ury, and despite the recklessness of expenditures in 
so many other ways, so that none but those rich 
enough to assume the expenses of serving their coiui- 
tr}^ are eligible for such offices. Cabinet officers re- 
ceive £1600, Judges of the Supreme Court of the United 
States £2000, and Foreign Ministers of the highest 
class £3500 per annum. This arises from the petty 
jealousy of many members of Congress and of the 
lower orders of their constituents, of the social position 
which these places necessarily entail. 

These, very briefly indicated, are but specimens 
of the tone and character of Congressional and legis- 
lative action, and are the results that have actually 
come to pass under the system of universal suffrage : 

409 



ORATIONS AND ESSAYS 

first, in the class of men that it brings into Congress ; 
next, in the motives by which they are influenced, 
in view of the controlling elements in their constitu- 
ency. 

Now, pausing at these facts, and disregarding the 
minor proprieties and dignities of administration, 
which are more offensive to the taste of the fastidious 
than essential to the actual prosperity of mankind, 
we may usefully inquire whether features in the 
public service, so material and so dangerous to the 
future of America, are attributable to the character 
of the American people; or, if not, whether they are 
the necessary- or natural offspring of the republican 
form of government. If they can be assigned to either 
of these causes, then we may be justified in expecting 
that thej^ will not follow in the train of universal suf- 
frage in England. 

Well-informed Englislimen, and especially those 
\vho have visited the United States, do not need to be 
told by Mr. Bryce that in no countrj' in the world 
is the standard of personal character, of integrity, 
and of honor in all the relations of life, higher than 
it is there. In no other sjihere than that of politics 
is any unusual demoralization visible. Mr. Brj-ce 
has dealt very fully with the subject of national char- 
acter and social institiitions in America, and his high 
estimation of both will be sustained by the general 
intelligence of Englislimen. It appears clearly enough 
that the degradation of American politics, in those 
parts of the country where it exists, is in defiance of 
public opinion, and not in consequence of it, and is at 
once the cause and the effect of the practical exclu- 
sion from that field of the better classes of the peoj)Ie. 

410 



THE AMERICAN COMMOxX WE ALTII 

How that exclusion conies to pass is very precisely 
pointed out bj- the author. 

To assume, on the other hand, that these results 
are the necessary outcome of republican institutions, 
is equally to conclude that they nuist be expected in 
any other form of <j;overnment that depends upon 
popular suffrage. Whatever the form, that is the 
controlling element. There may be material advan- 
tages in the hereditary over the elective executive. A 
more efficient and uniform administration, more dig- 
nified forms and more creditable appearances, may 
be maintained under the one than under the other. 
But in both, everything turns at last upon the voice 
of the people. That nuist in the long run penetrate 
all departments, in England as well as in America, 
even to the throne itself. 

It is true that in the United States rmiversal suf- 
frage has had more than a hundred years in which 
to develop its legitimate i)roduct, and has thus much 
the start of its prototype here. The results now ap- 
parent were not immediate ujion the adoption of the 
system, but have been steadily coming on with time. 
It is true, also, that its application under republican 
institutions has a much wider area than in Great 
Britain. Elections are more numerous, and the num- 
ber of officials, small and great, who are elected by 
popular vote is greater. But this diffu.sion of the 
voting power over a large surface and into many 
channels, while it increases the uproar, diminishes 
the danger. Governmental power is widely distrib- 
uted in that country, both as between the national 
and the State authority, and in the numerous rami- 
fications of the latter. No department or body is 

411 



ORATIONS AND ESSAYS 

omnipotent, or can work mischief beyond a certain 
point. The American Constitution surrounds both 
government and personal rights with various safe- 
guards that do not exist in England. 

Here there is no institution whatever that cannot 
be constitutionalh^ and peaceably overthrown, and 
no right that cannot be successfully invaded by an 
act of Parliament, until Parliament itself is overcome 
by revolution and armed resistance. And what is 
Parliament but the House of Commons, elected by 
a nearl}^ universal suffrage, and a House of Lords 
which, it has been already showai and is now conceded, 
cannot stand out for any considerable time against 
the expressed will of the House of Conmions. The 
veto of the crown and the independent power of the 
House of Lords have passed out of the British Con- 
stitution. How long could the throne itself be main- 
tained against the deliberate will of a permanent, 
popular majority, acting through Parliament? 

It is impossible, therefore, to disregard the political 
results that have taken place in America, upon the 
assumption that they are peculiar to that country 
or to its form of government, and are not the fruit 
of the common fundamental power that equally con- 
trols the American Republic and the British mon- 
archy. What would be the substantial difference 
between the two governments, if the one had in place 
of the President a hereditary King, or if the other 
had instead of the throne an elective President ? 
Under either of these changes, the stronger govern- 
ment would be the American. First, because of the 
independent and co-ordinate powers of the Senate, 
as a branch of the legislature, which does not and is 

412 



THE AMERICAN COMMONWEALTH 

not expected in any case to defer to the will of the 
lower house. Secondl}-, because of the veto power 
vested in the executive, which can onh' be overcome 
b}^ a vote of two-thirds of both houses. Thirdl^y and 
especially, by the restrictions imposed upon both the 
legislature and the executive, in the provisions of the 
Constitution, which are enforced by the judicial power 
so far as they affect any right of the citizen in respect 
to life, liberty, or propertj'. 

When the real essence of the principles of represent- 
ative government, and the extent to which their con- 
trol reaches, are attended to, it becomes api)arent that 
luider both forms they are substantially the same. 
One cannot ultimately be maintained if the other 
cannot, whatever the less important advantages of 
either may be in points not vital to their existence. 
If there is a difference in respect to permanence be- 
tween them, that difference is not in our favor. And 
if govermiient by universal suffrage in America brings 
necessarily- after it such {)olitical consequences as 
have been pointed out, it will certainly in due time 
bear the same fruits here. 

Mr. Bryce has not confined his observations of polit- 
ical conditions in the United States to the surface, 
nor contented himself with stating only results. He 
has gone so thoroughly into the {)rocesses that have 
led up to them as to leave no doubt in the mind of the 
least informed reader in respect to the root and source 
of the existing evil. It is not the natural consequence 
of free institutions, in either of their forms. It is no 
part of the necessary price of rejiresentative govern- 
ment. The whole mischief is the plain and clear 
outcome of a vicious and altogether unneces.sary 

413 



ORATIONS AND ESSAYS 

enlargement of the electorate. And it points not tow- 
ards any doubt of the permanence or ultimate prac- 
ticability of that system, but to the necessity of re- 
forming it in this vital particular, by placing it on 
the foundation of a proper constituency. American 
politics have simply been debased and corrupted by 
admitting to the right of suffrage the class who are 
utterly unfit for it. The general mass of the people 
are quite capable of self-government; and in those 
parts of the country where they are not swamped by 
the bad element, they have shown themselves most 
successful in maintaining and steadily improving it. 
It may be worth while to glance briefly, in the light 
of Mr. Bryce's observations, at the manner in which 
a class, largely in the minority in point of numbers, 
have thus been able to become predominant at those 
vital points where important elections and great ques- 
tions of policy are principally determined, as well as 
where opportunities for public plunder are most rife, 
and the scandals of jobberj^ most conspicuous. 

As has been remarked, every man born in the United 
States becomes a voter there at twenty-one years of 
age, and the ranks of this army are largely swelled 
in certain quarters by an influx of foreign immigrants, 
who are rapidly taken in hand and put through the 
naturalization process by the political recruiting 
sergeants. This brings together, especially in the 
large cities, a considerable body of the lowest classes, 
ignorant, poor, often idle and vicious, sometimes 
criminal — the natural and easy material of the dema- 
gogue and the professional politician. Were it pos- 
sible to array against this contingent at the polls the 
votes of the respectable classes, they would be out- 

414 



THE AMERICAN COMMONWEALTH 

numbered and made comparatively harmless. But 
this is impossible under the party organizations, 
which appear to be a necessary concomitant of free 
government. Party .sjnrit runs high— party ques- 
tions attain great prominence— party exertions are 
excessive and untiring. The line is not drawn in 
America as it is coming to be in England, horizon- 
tally, but perpendicularly. And the result is that 
the mass of material of the worser sort holds the bal- 
ance of power between the great parties, and their 
adhesion to one side or the other makes the difTerence 
between success and defeat. 

It is these shifting and personally worthless cohorts 
who have therefore to be considered and conciliated. 
Candidates must be selected, not upon their merits, 
nor upon the opinion of the intelligent portion of so- 
ciety, but in view of their acceptance and popularity 
with the lowest stratiun. Measiues of public policy 
must be framed to meet their prejudices. What the 
public interest demands must give way to that which 
will tickle the fancy or gratify the ignorant fancies 
of this class of men. The better sort of people may 
be depended upon, under the i)ressure of party al- 
legiance, party discipline, and their interest in party 
measures, to vote the regular ticket, whatever they 
may think of its composition. The unfailing argu- 
ment is — better the success of the party with ques- 
tionable candidates than the triumph of its opponents 
with any. And conscience is satisfied with a vague 
idea of what is called "reform within the party," to 
be realized in the indefinite future, but which jiriucipally 
consists in growing steadily worse. 

A still more mischievous consequence follows the 

415 



ORATIONS AND ESSAYS 

possession of the right of suffrage by this body of 
voters, in the means it affords to unscrupulous pro- 
fessional politicians of the lower order for obtaining 
control of the party, and, through its successes, of 
the government. Such men constitute themselves 
the officers of these battalions — the captains of hun- 
dreds. Each gathers to liim.self a company which 
is imder his control and obedient to his command, 
and combines with other captains under the leadership 
of a more powerful commander. The organization 
thus becomes necessary to the success of the party. 
The men who command it acquire an importance not 
to be disregarded. And when by their assistance 
the party comes into power, whether in the national, 
the State, or the municipal government, their claims 
to office must be satisfied, whatever the consequence 
to the public service. If there are no vacancies, they 
must be created by the removal of incumbents, and 
then divided among the throng of applicants, with 
little reference to personal fitness or even reputable 
character, but simply as a reward for partisan service, 
often of the worst and most debasing kind. The 
whole government is thus degraded to satisfj^ the de- 
mands of the trading politicians by whose help victory 
has been purchased, and with whose hostility- defeat 
is to be looked for. Shocked by this condition of 
things, the better element in the country has made 
some earnest attempts at civil service reform, but with 
verj?^ partial success. And the course of the present 
administration thus far affords no encouragement to 
the hope that public office will in the main be treated 
otherwise at present than as the legitimate spoil of 
the victor, to be parcelled out, as far as it will go, among 

416 



THE AMERICAN COMMONWEALTH 

the discreditable mercenaries of the camp. This 
whole evil, a bitter reproach and standing menace 
to the institutions of the United States, is traceable 
directly to the presence in the electorate of the bad 
element that has been described. Without it the 
most mischievous class of professional politicians 
would be powerless. They would be like officers 
without troops. Their influence upon the respectable 
and industrious classes would be very .small. They 
would pass out of politics as a feature of any impor- 
tance if the raw material they deal in was withdrawn. 

IVIr. Bryce's chajners on this subject make it clear 
that the state of things thus described is but little 
apparent, except at points where large bodies of voters 
of the ba.ser sort are assembled. In such places it 
has comjilete control. And in the present division 
of American parties, the majorities obtained in tho.se 
localities are decisive, not only of State but of na- 
tional elections. In the last two Presidential contests 
the election has turned upon the vote of the State of 
New York, and that has in turn dejiended upon the 
vote of the citj- of New York, which contains probably 
a larger projiortion of voters who are unfit to vote 
than any other place in the Union. 

Another and most material respect in wliich this 
class of electors constitutes a mischief and a danger 
is in becoming the ready material of what ma^' be 
called the plutocracy of America — those who have 
in one way or another amassed vast and often sudden 
fortunes, and who are willing, by unscrupulous briber^' 
and corruption, to carry elections in order to obtain 
office, and to bring about legislation favorable to 
their interests. There could be no buyers of votes in 
2D 4T7 



ORATIONS AND ESSAYS 

the political market if there were no sellers, nor any 
sellers if there were not buyers. The result is that 
it is quite possible in many places to carry an elec- 
tion through sheer bribery of the wortMess and un- 
principled class, by the money contributed by these 
plutocrats, and disbursed by adroit political man- 
agers. It is probably undeniable that the recent 
Presidential election was decided by votes actually 
purchased for monej^, which was contributed in large 
sums by the wealthy manufacturers who were alarmed 
lest the protective duties by which they are enriched 
should be din:inished. 

The outcome of all this is simply class government 
— an oligarchy of the lowest class instead of the highest. 
It is justly thought a detriment to free government if 
an aristocracy' has an undue share or influence in it. 
It is felt to be unjust that one class more than another 
should have a preponderance, even though it is the 
best class and the most competent to understand and 
to administer the business of govermnent. Equality 
in political rights is said to be the condition of a really 
free government. Loud clamor is immediately raised 
if anj' special power is conferred upon the higher 
class over that which is enjoyed by the remainder. 
Upon what principle then is it to be maintained that 
the lowest and least competent body should have 
a power denied to the best? And what conceivable 
benefit can be supposed to be derived by substituting 
a bad oligarchy for a good one? If a good one is bad, 
how much worse is a bad one? If it could be always 
certain that an aristocratic class, if intrusted with the 
government, would administer it with a disinterested 
regard for the benefit of the general mass of men, and 

418 



THE AMERICAN COMMONWEALTH 

in the exercise of its best intelligence to that end, it 
would not be easy to state a sound objection to such 
a mode of government. It is precisely because human 
nature is not to be trusted with such power, and is 
so likely to abuse it for selfish and personal ends, 
that the necessity for representative popular govern- 
ment arises. But if, in the constituency which elects 
the representatives, for intelligence there is substituted 
ignorance, for good character vice, or no character at 
all, for education illiteracy, and for independence the 
venality wliich can be jjurchased in the market, and to 
these as the controlling element is given the decisive 
voice and vote in political affairs, what is the value 
of representative govermnent, and how is it better than 
an aristocratic or even a despotic one? 

The very theory of free government is that it sub- 
stitutes for the caprice, the selfishness, and the oj> 
pression of arbitrary i)ower the e.xercise of the intel- 
ligence, the virtue, and the patriotism of the governed. 
But this presu}iposes that these qualities, so essential 
to its success, shall be applied to it, not withheld from 
it. The business of government, in these days es- 
pecially, indeed in all days, will be conceded to demand 
the best ability, the most far-seeing sagacity, and 
the purest integrity that the community in which 
it resides can furnish. The best is not too good; 
much less than the best cannot long be endured. The 
Americans have gone on under circumstances more 
favorable than they can probably continue to be. 
They have thriven and prospered and advanced with 
rapid and startling strides in material growth, in spite 
of these disadvantages. Land has been abundant 
and cheap. Natural resources and treasures of manj' 

419 



ORATIONS AND ESSAYS 

kinds have been enormous. The stimulus of youth 
and its superabundant vitaUty have been in full tide. 
Meanwhile the decay in political and official life has 
been steadj' and increasing. 

The true need of America was stated by a writer 
in that country not long ago to be the statesman who 
could relieve the country of about a quarter of a million 
of its voters. The number that ought to be got rid 
of has since considerably increased. Apart from the 
negro vote, it is probable that the vote of that class 
incapable of adding any good element to the electorate, 
and fruitful of mischief and danger, is much larger. 
Popular government should be, and can be made to 
be, on the w^hole, the best government, displa3'ing 
fewer evils and more advantages than any other. 
But before that is successfully accomplished the 
elimination from the constituency of this element 
nuist be brought about, not probably with its own 
consent, but in spite of it. In doing so it will be neces- 
sary to exclude no man but by his own fault; to set 
up no standard that any ordinary man cannot attain 
if he will, and that he will not be amply rej^aid in every 
way for attaining, quite irrespective of acquiring the 
right of suffrage, and of becoming eligible for public 
office. 

Suppose from every constituency in Great Britain 
and in the United States there was eliminated everj'^ 
man who could not prove by the testimony of his 
neighbors the reputation of a decent and respectable 
character and life, who could not read and write well 
enough for the necessities of ordinary business, and 
who had not resided where he proposes to vote long 
enough to be well known. Will it be contended that 

420 



THE AMERICAN COMMONWEALTH 

the constituency so diminished has lost an,v ingre- 
dient that could possibly improve it, or render its voice 
in public affairs more useful? Suppose we go further, 
and likewise exclude every man who is not the pos- 
sessor in liis own right of property, real or personal, 
in some form that either produces income, or is em- 
ployed in a lawful industry or pursuit out of which 
income is derived, to the amount of say one hundred 
pounds. Has the constituency been on the whole 
improved or depreciated in quality? It is quite true 
that the ownership of property is not necessarily a 
guarantee of good character, or of high intelligence. 
But in the majority of instances it affords material 
evidence of it. It indicates a certain capacity, in- 
dustry, and thrift to have earned and kept even that 
moderate sum. In a thousand voters who in mature 
manhood had not acquired that much jiroperty, how 
many would be found really possessed of those quali- 
ties that fit them for the exercise of suffrage? And 
in a thousand who had earned or accumulated that 
amount, and could show also the requisite good char- 
acter, and at least elementary education, how many 
on the whole would be found destitute of them? A 
man may undoubtedly be impoverished, and yet be a 
capable voter. And he may have a competence, and 
be an incapable or dishonest one. But these cases 
are the exceptions and not the rule. Society stands 
upon property — not necessarily upon wealth. It is 
by property that its charities, its humanities, its re- 
finements, its progress are carried on. It is to that end 
all honest industry is directed, it is by that means 
that the comforts and necessaries and refinements 
of life are obtained. A community of the destitute 

421 



ORATIONS AND ESSAYS 

is usually vicious, idle, and criminal. One that is 
prosperous is generally the opposite in character. If 
the stimulus of the acquisition and preservation and 
enjoyment of property is withdrawn, industry ceases, 
and idleness and lawlessness take its place. And 
as it is impossible to determine the personal qualifica- 
tions of each voter on his merit, and some general 
rule must be resorted to, there is no other attainable 
which will give a correct result in so large a majority of 
cases. It may be added that the possession of property 
ranges its owner on the side of law and order. His 
interest and his future hopes are on the side of society, 
and not against it. If he is likewise made a taxpaj^er, 
even to no greater amount than a simple head or poll 
tax, he becomes interested in the expenditures he 
votes upon, and in the proper administration of the 
public service. 

The right of suffrage would thus become something 
to be honestly striven for, with a certainty of success, 
by the proper exertion. When attained, it would be 
something to value and be proud of, a certificate not 
merely of birth, but of a certain character, intelligence, 
and respectability, at once the stimulus and the re- 
ward of a decent and industrious life. The suffrage 
would no longer contaminate the public service, and 
it would tend to elevate its possessor. 

The demagogue, the charlatan, or the political 
trickster would loudly object to this. The material 
thus excluded from the electorate is his stock in trade. 
Their ignorance and prejudice and venality are the 
commodities he manipulates and thrives by. Among 
honest, intelligent, and industrious men there might 
still remain some few whom he could delude or control, 

422 



THE AMERICAN COMMONWEALTH 

but not enough to be a commanding force, or to make 
his vocation profitable. But his loss would be the 
nation's gain. Representative government would 
rise, as political handicraft declined. If from everj' 
ten voters unfit for the suffrage and only potent for 
evil, eight, or even five, could be withdrawn, the gain 
would be immense. Many an election would be better 
decided, and a fresh stimulus to worthy and patriotic 
effort would be given. 

This is beyond question the chief lesson in politics 
to be drawn from the results of the first century of 
American history, as depicted in the observations 
and criticisms of Mr. Brvce. We are in tliis country 
not only extending the suffrage, but increasing the 
opportunities for its exercise, and the agencies of 
government that are derived from it. We cannot 
reasonably hope to escape consequences that have at- 
tended it elsewhere. It takes time for the lowest ele- 
ment, and those who handle it, to organize and assert 
their strength. Old ways and traditions have to be 
gradually overcome, and new methods introduced; 
the journeymen in the trade of macliine politics have 
to be educated into master - workmen. The effect 
upon the character of the House of Commons pro 
duced by even our short experience in the indefinite 
enlargement of the constituency' need not be pointed 
out, for it is conspicuous. When its doors begin to 
close upon the class that have in recent times con- 
trolled it, and when English gentlemen begin to turn 
their backs upon political life, as American gentle- 
men have so largely done, what force or virtue 
exists in British institutions that shall very long 
prevent the natural sequence of cause and effect 

423 



ORATIONS AND ESSAYS 

that has been displayed on the other side of the 
sea? 

It should not be inferred from the space bestowed 
in these remarks upon the subject of the state of Ameri- 
can politics that Mr. Bryce has confined himself to 
that least attractive phase of transatlantic life. Had 
he done so, his book would have been far less inter- 
esting, as well as less useful, than it is. He has 
touched with a free hand the society, the social and 
non-political institutions, the educational advantages, 
the general spirit, tone, and impulse of life in the 
country he has tried to describe. It would be pleasant 
to follow him in these excursions if time allowed, and 
to deduce from them the general view to which they 
point. It would be found, as it has been found by 
those inhabitants of either countrj^ who have made 
themselves personally acquainted with the other, that 
there is not so much difference between the two branches 
of the race as the distorted views and unreasoning 
prejudices of a few bilious critics on the one side and 
the other have led them to suppose. If some American 
gifted with a temper as genial, a pen as facile, and 
a scholarship as generous as ]\Ir. Bryce possesses, 
would now write for the benefit of his countrymen a 
similar book about England, it would do those of 
them who have not seen their mother-country a world 
of good, and perhaps give John Bidl himself a look in 
the glass that woidd do him no harm. The chief 
points of discrimination between the two nations are 
those that are always to be found in the contrast of 
j'outh and maturity. Each period has its excellence 
and its defects, its charms and its blemishes. Youth 
has its exuberant spirits, its full tide of life, its fresh- 

424 



THE AMERICAN COMMONWEALTH 

ness, its activity, its follies, its generous promise. 
Age brings the finish, the dignity, the repose, the 
ripened harvest, and the weariness. It is in.si)iring 
to look forward, even to an unknown future. It is 
satisfactory to look back upon a great and accom- 
plished past. 

It needs no prophet to perceive that the race is to 
dominate the world, when time is old enough. In 
the perpetual fraternity of its branches lies their own 
and the world's best hope. 



IV 
THE BERING SEA CONTROVERSY 

(WRITTEN IN APRIL. iSgi) 



THE BERING SEA CONTROVERSY 



The question involved in what is called the Bering 
Sea controversj' may be stated in few words. The 
Alaskan fur-seal fishery is the most important in the 
world. It was a material element in the value of that 
province when purchased by the United States from 
Russia, at a heavy cost, and one of the principal in- 
ducements upon which the purchase was made. Since 
Alaska became the property of the United States, this 
fishery has afforded a very considerable revenue to 
the government by the lease of its privilege, has en- 
gaged a large amount of American capital, and the 
industry of many American people. The product is 
an important article of commerce and of manufacture, 
the loss of which would not be easily supplied. The 
seal is amphibious. It is not a denizen of the sea alone, 
still less a "wanderer of the sea," but requires both 
land and water for its existence, and especially for its 
propagation. It has a fixed habitation on the Alaskan 
shore, from which it never long departs, and to which 
it constantly returns. It belongs, therefore, to the 
territory on which it makes its home, and where it 
breeds, and gives rise there to a business and a rev- 
enue, as much entitled to the protection of the govern- 
ment as the larger commerce of the port of New York. 

429 



ORATIONS AND ESSAYS 

It is the habit of this colony of seals to cross through 
the sea, during breeding time, to the Pribyloff Islands, 
which form a part of Alaska, where their young are 
produced and reared. More sagacious and peculiar 
in their habits than most animals, and almost human 
in some of their instincts, this process of seclusion 
has become essential to successful propagation. It 
must be tolerated and protected, or propagation will 
cease. In making the passage, the seals necessarily 
cross a portion of the Bering Sea which is more than 
three miles outside of either shore, and is therefore 
beyond the line usuall}' regarded as the limit of national 
jurisdiction on the borders of the ocean. It has been 
the custom for several years past for certain Canadian 
vessels fitted out for the purpose to intercept the seals 
on this passage while outside of the three-mile line, 
and to shoot them in the water. Many of the animals 
thus destroyed sink and are lost. Those that are saved 
are considerably diminished in value by their con- 
dition. Still, there is a certain profit in the business, 
inhuman and wasteful as it is. But the necessary 
result of it, if continued, will be the extermination of 
the seals in Alaska within a very short time, the de- 
struction of the interests and industries dependent 
upon them, and in a large measure the withdrawal 
of the fur-seal skin from commerce and from use. 
The certainty of this result is proved by what has al- 
ready taken place. The Secretary of State in his 
last (published) communication to the British govern- 
ment on this subject, makes the following statement : 
" From 1870 to 1890, the seal fisheries, carefully guard- 
ed and preserved, yielded 100,000 skins each year. 
The Canadian intrusions began in 1886, and so great 

430 



THE BERING SEA CONTROVERSY 

has been the damage resulting from their destruction 
of seal life in the open sea surrounding the Pribyloff 
Islands, that in 1890 the government of the United 
States limited the Alaska Company to 60,000 skins, 
but the company was able to secure only 21,000 seals." 

The simple question presented is whether the United 
States govermnent has a right to protect its i)roperty 
and the business of its peojjle from this wanton and 
barbarous destruction by foreigners, wliich it has 
made criminal by act of Congress; or whether the fact 
that it takes place upon waters that are claimed to be 
a part of the open sea affords an inmiunitj^ to the parties 
engaged in it which the government is bound to respect. 
To the ordinarj' mind this question would not appear 
to be attended with much difficulty. 

During the administration of President Cleveland, 
and as soon as these depredations were made known, 
our government applied to that of Great Britain, setting 
forth the facts, and proposing that a convention should 
be entered into between the two nations, in wliich 
Russia should be invited to join, limiting the season of 
the year in wliich seals might be taken, and prescrib- 
ing a close time covering the period of breeding, with- 
in which they should not be molested : the provisions 
of the convention to be carried into effect by suitable 
legislation in the three countries, and imder the con- 
current authority of their governments. This pro- 
posal was not met on the part of the British govern- 
ment by any assertion of the right of the Canadians to 
destroy the seal in the manner complained of, or by 
any vindication of the propriety of that business. The 
expediency of the convention was at once conceded, 
and the concurrence of Great Britain promised; and 

431 



ORATIONS AND ESSAYS 

the United States government was requested to pre- 
pare and furnish a draft of such regulations as were 
deemed necessary to accompUsh the object. Such 
a draft was soon after transmitted, and no question 
ever arose between the governments in respect to its 
details. The Russian government, whose concur- 
rence in the convention was invited through its am- 
bassador in London, at once agreed to join in it, and 
expressed its desire that the agreement should be con- 
sunmiated as soon as possible. It was supposed on 
the part of the American government that the whole 
matter was satisfactorily arranged, and onlj^ awaited 
the execution of the formal agreement, and the passage 
of the proper legislation by Parliament and bj^ Con- 
gress. But after a considerable delay it transj:)ired 
that an unexpected obstacle had arisen. It came 
to be understood that Canada, whose people were 
carrying on the business in question, declined to assent 
to the establislmient of the proposed restrictions upon 
it. Having no interest whatever in the preservation 
of the seal, nor in the property to which it gave value, 
they preferred to make such jjrofit as thej^ could out 
of its extermination. And this, after some time spent 
in what was no doubt a sincere effort on the part of the 
British government to overcome the objections of Can- 
ada, brought the attempt at a convention virtually' 
to an end. These facts are taken from the published 
despatches of the American Minister at London to 
his government, without attempting to state auN'tliing 
not already laid before the public. 

The laws of all civilized nations, based upon the 
ordinary dictates of humanity as well as upon the 
requirements of self-interest, accord to all wild animals 

432 



THE BERING SEA CONTROVERSY 

beneficial to mankind and not noxious or mischievous, 
protection from destruction during the necessary pe- 
riods of gestation and of rearing their young. Under 
the provisions of such game laws as everywhere pre- 
vail, a man may not slay during that time, even upon 
his own land, any of those denizens of forest, field, 
or stream which the Creator has placed there for the 
benefit or sustenance of man. The woodcock and the 
partridge minister rather to sport than to profit, yet 
they are protected in the breeding season in all coun- 
tries, and preserved from extermination. Nowhere 
are such salutary laws more rigid in their enact- 
ments, more thoroughly enforced, or more universally 
respected than in Great Britain. It would be difficult 
to exaggerate the barbarity or the wastefulness of 
the slaughter of wild creatures when heav^' with 3'oung, 
so harmless, so interesting, and so useful as these, 
by the destruction of two lives for half the projier value 
of one, and that one saved only half the time. If the 
law of humanity does not terminate with humanity, 
and can be said to extend to those lower orders of crea- 
tion that minister in their humble way to human en- 
joyment, surely such a practice as this can find no 
excuse or i)alliation. The repression of it ought not 
to be the subject of a moment's debate between Chri.s- 
tian nations, if it requires their mutual action. But 
the case does not rest j^rincipally upon sentimental 
or humanitarian considerations. These animals, as 
has been pointed out, are a large and valuable property, 
an established and proper source of public and private 
revenue and of useful industry, all soon to perish unless 
the protection which humanity demands can be ex- 
tended to them. Why should they not receive it? 
2E 433 



ORATIONS AND ESSAYS 

It is said that the government is prevented from 
discharging this obvious duty, because the sea is 
free; that no nation can undertake to close the ocean 
against the ships of any other nation, nor to exercise 
over them, beyond three miles from the coast, anj^ 
paramount jurisdiction. This general proposition will 
not be questioned. The Secretary of State, in his 
correspondence with the British government on this 
subject, has undertaken to maintain that these waters 
are not, as between that country and the United States, 
a part of the high or open sea; that by the former treaty 
between Great Britain and Russia, a right of jurisdic- 
tion over them was reserved to the latter country, and 
was conceded and acquiesced in by the former; and 
that the same right was virtually set forth in the treaty 
of 1824 between Russia and the United States. The 
British govermnent, while denying this conclusion, 
admits that whatever right of this sort Russia had 
under that treaty as against Great Britain passed to 
the United States when they purchased from Russia 
the territory to which it attached. It is not proposed 
in these observations, nor would it be within their 
limit, to attempt to restate the argument of Mr. Blaine 
on this point. It is presented with great ability, fvil- 
ness, and clearness, and there seems to be nothing left 
to be added in either particular. It depends principally 
upon historical evidence, which must be closely ex- 
amined to be understood; and that evidence certainly 
tends very strongly to support the result that is claimed 
by the Secretary. If in this position he is right, it is 
the end of the case. Because it brings these waters, 
as against Great Britain at least, within the territorial 
jurisdiction of the United States, not by their geo- 

434 



THE BERlNd SEA CONTROVERSY 

graphical situation alone, but by the virtual provisions 
of the treaties among the high contracting powers 
concerned. 

But suppose that upon this question Mr. Blaine is 
wrong and Lord Salisbury is right, and that the waters 
between the mainland and the Pribyloff Islands 
outside the three-mile limit are to be regarded as a 
part of the open sea. In what does the freedom of the 
sea consist? What is the use of it that individual en- 
terprise is authorized to make, under that international 
law which is only the conmion consent of civilization? 
Is it the legitimate pursuit of its own business, or the 
wanton destruction of the valuable interests of na- 
tions? If the government of the United States is 
restrained by any princijile of law from protecting 
itself and its citizens against this great loss, it nuist 
be because the Canadian ship-owners have a right to 
inflict it. That is to saj', that these acts, prohibited 
by American law, unlawful to Canadians wherever 
territorial jurisdiction exists, which would be sjjeedily 
made unlawful within their own territory if any seals 
existed there, and which are wanton and destructive 
everywhere, become lawfid and right if done in the 
open sea, and are therefore a proper incident to the 
freedom of the sea. The clear statement of this proji- 
osition refutes it, in the minds of all who are capable 
of a sen.se of justice, and able to discriminate between 
right and wrong. The freedom of the .sea is the right 
to pass and rej^ass upon it without hinderance or moles- 
tation, in the pursuit of all honest business and jileasure, 
and it extends no further. It never authorizes injury 
to the property or just rights of others, which are as 
sacred at sea as on shore. This colony' of seals, mak- 

435 



ORATIONS AND ESSAYS 

ing their home on American soil and unable to exist 
without a home upon some soil, belong to the proprietors 
of the soil, and are a part of their property; and do 
not lose this quality by passing from one part of the 
territory to another, in a regular and periodical migra- 
tion necessary to their life, even though in maldng it 
they pass temporarily through water that is more 
than three miles from land. 

It is true that among the unquestionable rights of 
mankind in the open sea is that of fishing. The fish 
that live in the sea are common property, attached 
to no territory and belonging to no jurisdiction until 
they happen to wander into it, and then only while 
they remain there. But the seal is in no sense a fish. 
As has been pointed out, it does not remain in the 
sea, but has a habitual abiding-place upon the land, 
to which it regularly resorts, and where it may be 
said to belong. But even in the pursuit of fishing 
in the open sea, let us suppose that the people of one 
country should invent a method so wasteful and so 
destructive as necessarily to result in the speedy ex- 
tennination of all fish, and should propose to practise 
that method of fishing in waters adjacent to the ter- 
ritories of another nation, though three miles from 
land, to the certain ruin of its established industry 
and of one of its important means of sustenance and 
of revenue. Would that nation and others interested 
in the preservation of fish be compelled to stand helj> 
lessly by and permit such an outrage to be accomplish- 
ed? Must all nations lose their share in the conmion 
stock, and the world be deprived of its benefit, because 
no one of them lias a right to close up or control the 
open sea? Or would it be likely to be discovered that 

436 



THE BERING SEA CONTROVERSY 

rights on the sea, hke all rights rccof^aiizcd by civilized 
law, must be exercised with a due regard to the rights 
of others ; and that the common right of free fishing 
did not include the right of wanton and barbarous 
destruction of all fishery? Doubtless in that case 
as in this, some lawyers would be prepared to demon- 
strate that, much as the calamity might be deplored, 
there was really no precedent to be found in the books 
for any interference to prevent it, because no such 
wrong had ever been attempted before, and to point 
out that to proceed without a precedent would be to 
set all jurisprudence at naught. Precedents illustrate 
principles, but do not create them. They are only 
valuable so far as they display the aj)plication of 
principles to new cases. They do not arise out of 
rights, but out of attempted wrongs. A right cannot 
obtain the sanction of a precedent until it is invaded. 
And an invasion of a right is not without redress, 
though it may never have been invaded in the same 
way before. There must always be a first case, but 
not necessarily therefore a remediless case. When 
the case arises that justifies a precedent, the occasion 
for making it should be availed of, for the sake of the 
law, as well as for the sake of the right. 

When the extent to which the sea may be used, and 
the purposes for which its {)athless highway may 
be employed, are considered in the light of the rules 
that have been established by the general consent of 
mankind, it will be seen that the freedom of the sea 
is largely a figure of speech. It is not free, it has 
never been free, for any purpose whatever, injurious 
to the rights, the property, or the honor of a nation 
able to defend itself, or even to those interests of a 

437 



ORATIONS AND ESSAYS 

nation which are paramount in importance to the 
mere profit to be made out of an otherwise lawful act 
that endangers them. Rights upon the sea are more 
restricted b}' considerations of that sort than an^- other 
rights that are enjoyed by mankind. And the rights 
of self-defence there are broader, and are measured 
by a more arbitrary standard. Of the occasion, the 
necessity, and the extent of self-defence, everj- nation 
must judge for itself, since there is no conmion tribunal 
to appeal to, and no redress to be obtained except 
such as it shows itself able and determined to exact. 
The restraint upon it, in so doing, is found in the gen- 
eral opinion of the world, guided by admitted princi- 
ples and established usages. Were it desired to extend 
these observations into a treatise upon the freedom of 
the sea, it would not be difficult to show how numer- 
ous are the restrictions to which that right has been 
subjected, and in how wide an analogy the necessity 
on which they stand finds illustration. The con- 
cession to ever>' country bordering upon the sea of a 
certain authority over so much of it as is comprehended 
witliin three miles of the coast is but an instance of 
such a restriction. The sea within that line is no part 
of the territory of a nation. All ships have a right 
to pass and repass there, and the government cannot 
exclude them, yet in all business done witliin that 
limit they are subject to such reasonable regulations 
and conditions as the government tlrinks proper to 
impose. The slave-trade between Africa and coun- 
tries where slavery was legal was once a legitimate 
commerce, to which the sea was open. When consid- 
erations of humanity and wiser policy united to dis- 
countenance that traffic, the sea was closed to it. When 

438 



THE BERI.\G SEA CONTROVERSY 

a nation establishes a blockade of the ports of another 
nation with wliich it is at war, neutrals having no i)art 
or interest in the quarrel, must submit to discontinue 
their just and lawful trade with such jwrts, though the 
blockaded inhabitants maj' desire and greatly need 
to contiiuie it. Neutrals must also in case of war 
abstain from carrying to either party articles contra- 
band of war, a term of vague and undetermined im- 
port; although such articles are the subject of legiti- 
mate manufacture, sale, and transportation all over the 
world. Under like circumstances the neutral carry- 
ing trade upon the high sea is largely impeded and 
embarrassed in the interest of belligerents. Freight 
belonging to citizens of either of the countries at war 
has been subject to be taken by the other belligerent 
out of neutral ships The rule that the neutral flag 
covers the cargo, if it may be said to be established, 
is only of recent date. The right of search of vessels 
at sea upon lawful business is an established right, 
not only against neutrals in time of war, but by one 
nation against the ships of another in time of peace, 
where the protection of national interests, like revenue, 
requires it. Illustrations of this sort might be multi- 
plied. And besides the restrictions thus established 
by rules that have become general and settled only be- 
cause they have been insisted on and enforced by na- 
tions to whose emergencies they were necessary, mar- 
itime history abounds with e.xamples of the applica- 
tion of the same principle to special cases claimed to 
be within its scope, which had never occurred before, 
and were not likel\' to occur again. The theoretical 
rights of individuals upon the sea always have been 
and always must be subject to be limited, even in the 

439 



ORATIONS AND ESSAYS 

pursuit of proper and justifiable business, by the just 
necessities and reasonable requirements of nations. 
The sea is the common property of mankind, and all 
rights upon it are qualified rights. 

By no nation in the history of the world has this 
principle been more frequently or more resolutely 
asserted than by Great Britain. She has never per- 
mitted any abstract theory of the freedom of the high 
sea to become a justification for inflicting serious 
injuries upon her interests or her property, for the 
sake of the trifling profits to be realized bj^ the assailant. 
The instance cited by Mr. Blaine, in the communica- 
tion before mentioned, of the act of Parliament passed 
during the captivity of Napoleon upon the island of 
St. Helena, forbidding ships of other nations, as well 
as those of Great Britain, to trade with or touch at the 
island, or to hover within eight leagues thereof upon 
the sea, under penalty of seizure and forfeiture, is but 
one among many illustrations of this policy. That 
upon ordinary principles the high sea could not be 
closed to ships of other countries for the distance of 
eight leagues from the shore was clear. It might 
have been plausibly argued as a consequence that if a 
foreign ship-master chose to earn his charter money 
by waiting on the high sea in time of peace to transport 
Napoleon to France, if he happened to make his escape 
from captivity by his own efforts and to reach the 
ship in safety, that was a business lawful to any person 
not amenable to British law, and who in transacting it 
did not invade British territory. Strictly, all this was 
true. But where the consequences to Great Britain 
as well as to the rest of Europe might have been so 
serious had the Emperor been enabled again to take 

440 



THE BERING SEA CONTROVERSY 

the field, and to involve those countries in war, it was 
justly felt that no considerations of private monej'- 
making should authorize the use of the sea for such 
a purpose. Nor has the action of Great liritain, in 
taking these extreme precautions to prevent it, ever 
been condemned, though it involved closing the high 
sea against a purpose not in itself unlawful, and i)er- 
haps, in the view of Frenchmen, meritorious. The 
case of the Caroline, in 1837, when the British forces 
pursued a schooner into our own waters, and captured 
and burned it, killing and wounding some of its crew, 
because it was engaged in the business of conveying 
arms and stores in furtherance of the Canadian rebel- 
lion, is another example of the same general principle. 
The act, which was prima facie a clear violation of 
the rules of international law. which proliibit a com- 
batant from pursuing its enemy into neutral waters, 
was justified by the British government upon the 
ground of necessary self-defence, and no apology 
was ever made for it. The force of this plea was ad- 
mitted by Mr. Webster when Secretary of State, in 
correspondence with the British government on the 
subject, provided the necessity of self-defence was made 
out. But he contended that the necessity must be 
"instant, overwhelming, having no choice of means, 
and no moment of deliberation," and that "the act 
justified bj^ the necessity of self-defence must be limited 
by that necessity, and kept clearly within it." The 
other instance cited by Mr. Blaine, of the pearl fisheries 
established in the Indian Ocean by a British colony, 
and the control exercised over foreign vessels engaged 
in that business outside the three-mile limit and in 
the admitted open sea, is directly in point. I.'- if to be 

441 



ORATIONS AND ESSAYS 

supposed that if such vessels were engaged, not in 
legitimate pearl fishing, but in some method of de- 
struction which must necessaril}" exterminate the 
pearl oyster, and bring the whole industrj- to an end, 
they would be permitted by Great Britain deliberately 
to accomplish that destruction, upon the plea that in 
so doing they were still keeping themselves within 
the limits of the open sea? Or would any fair mind 
contend that such an excuse would amount to a justi- 
fication? 

If the case of the Alaskan seal fishery was reversed ; 
if Great Britain was the proprietor of it, and American 
poachers were attempting its extermination, as a 
pretended incident to the freedom of the sea; if a re- 
monstrance addressed to our government had elicited 
the admission that the acts complained of ought to be 
restrained, but that the government for political rea- 
sons was unable to effect it, it is perfectly certain that 
the subject would pass very speedily out of the domain 
of speculations in abstract international law, and our 
government would be apprised, that if unable to re- 
strain its citizens from an outrage upon British rights 
which it did not assume to defend, the necessarj?^ meas- 
ures would be taken by the injured party to protect 
itself. 

These illustrations of the policy of Great Britain 
are not cited as casting any reproach upon that govern- 
ment. On the contrary the principle upon which they 
rest, even though it has been sometimes overstepped, 
is not only defensible, but is necessary to the pro- 
tection of the widespread interests in which the people 
of that nation are concerned. Nor could a wrong 
on the part of the United States be justified by showing 

442 



THE BERING SEA CONTROVERSY 

that similar or greater wrongs had been committed by 
Great Britain. They are referred to as applications 
of the underlying principle in international law whicii 
subordinates, in case of clear necessity, the abstract 
right of individuals upon the high seas to the pres- 
ervation of important national rights and interests 
that are brought into peril for the purposes of private 
gain. If a principle so obvious in its propriety and 
so necessary in its application needs to be sujiported 
by precedents, those set forth by one of the most en- 
lightened of nations, and the first maritime power 
of the world, are surely entitled to respect, and may 
be justly quoted against itself. 

But it is to be borne in mind in this discussion that 
Great Britain has never 3^et, in all the correspondence 
that has taken place, asserted the right of the Cana- 
dians to do what they have been engaged in. The 
question is not one of abstract theory. It is whether 
the Canadian ships have an indefeasible right to do 
precisely what they have done and are doing, despite 
the necessary consequences that must follow. This 
is the issue in the ca.se, to which all other inquiries 
are only subordinate. It is for those who set up such 
a right to sustain it. And if it can be supposed to 
be sustainable by precedents, it is for those who assert 
it to produce them. Mr. Blaine inquires in his recent 
comminiication whether the United States govern- 
ment is to understand that her Majesty's govern- 
ment maintains that the right contended for by Canada 
exists. This is a question to which he will not be 
likely to obtain a direct reply. As before stated, that 
government has once conceded the justice and the 
e.xpediency of a convention by which such a claim 

443 



ORATIONS AND ESSAYS 

would be prohibited. She has in former jears entered 
into a convention with Norway, which is still in force, 
for establishing a close time for the seal fisheries of 
that region, in which British and Norwegian vessels 
participate. Were only British instead of Canadian 
vessels concerned in the sealing business at Alaska, 
the convention would long ago have been completed. 
The interests of Great Britain are on the side of the 
preservation of the seals. The manufactures of seal- 
skin are a very large industry in London — larger 
than in any other place in the world. And in the 
conmiercial value of the product, Great Britain has a 
larger interest than any other country. The relation 
between Great Britain and Canada is very peculiar. 
In theory the latter is a British colony. In fact it is 
independent. Great Britain can exercise a certain 
influence over it, but has no means of governmental 
control. An attempt to override the Canadian govern- 
ment is not likely to be made, and would not succeed. 
The Governor-General is but a dignified figure-head, 
with but little real authority, and is not expected to 
allow himself to be drawn into collision with the pro- 
vincial government, or with Canadian public opinion. 
In matters like that under discussion, Canada takes 
her own course. In fitting out ships to take seals in 
the Bering Sea, she asks neither the consent nor the 
advice of the mother country, nor does that coiuitry 
or its people share the profit or loss of the adventure. 
Our controversy on the subject is realh' with Canada, 
and not with Great Britain. But in complaining 
against the depredations of these cruisers we can only 
address Great Britain, who thus stands between us 
and Canada, not as an vmipire, but bound to support 

444 



THE BERING SEA CO i\ T RO \- E 1^ S V 

the claims of her colony so far as she can, and not to 
concede away, unless compelled to, any rii^ht for 
which the colony contends. She may be unable to 
concur in its justice, but is not called upon to say so, 
as long as the question can be e\aded. The conse- 
quence is, in such a case, that her Majesty's ministers 
temporize and delay; they engage in the discussion 
of abstract and incidental questions, or transmit the 
contentions of the colonial government, without com- 
mitting themselves directly upon the decisive point 
on which the controversj- turns. They courteousl\-, 
slowly, and diplomatically evade the real issue, and 
decline to concede that the colon}' is in the wrong, 
well knowing bj- experience, that whate^'er adminis- 
tration maj' be charged for the time being with the 
govermnent of the United States will, in the efforts 
it makes to assert its rights, encounter the hearts- 
condemnation of the political party opposed to it; that 
the arguments it addresses to the foreign government 
will be abundantly answered and refuted by American 
writers, and their authors held up to derision; and 
that the next election is very likeh' to bring into power 
a new administration, which may abandon the con- 
tentions of their predecessors and {)ut the ca.se on en- 
tirely different groimds. 

In this, as in all other international controversies, 
one remark holds good. A nation divided against 
itself can never achieve a diplomatic success. A 
government that is not backed u]i by the unanimous 
sentiment of its people, but is opposed in its dealings 
with foreign nations by a large share of the best in- 
telligence of its own country, if not in the ends it seeks, 
at least in all the means it takes to obtain them, will 

445 



ORATIONS AND ESSAYS 

never be a formidable figure in diplomac\', especially 
when its force is found to expend itself in argument 
rather than in action. To peruse the discussions of 
most (juestions of this sort in the American press would 
lead the unlearned reader to conclude that one prop- 
osition in international law, at least, can be regarded 
as settled; that is, that whatever is asserted by our 
own govermnent is necessarily wrong. This point is 
readily conceded by our adversaries, but tends more 
to simplify disputes than to conduct them to results 
favorable to our own side. If our government is de- 
manding what is wrong, the demand should at once 
be abandoned. If it is claiming what is right, and 
what is worth claiming, it should receive the support 
of all parties, whether all the points taken, and all 
the arguments bj' which it endeavors to support its 
case, prove universally convincing or not. The task 
of refuting them may be well enough left to the other 
side. In the course of this controversj^, very little 
has appeared in print in the United States which tends 
to support our government, or to indicate that Ameri- 
can public sentiment sustains it. But much ability and 
learning have been devoted to answering the argu- 
ments and disproving the facts ujion which the govern- 
ment has relied. The authors can have the satisfac- 
tion of knowing that all these contributions to the 
British side of the discussion are promptly put on file 
in Her Majesty's Foreign Office, and will not fail of 
their effect. Great Britain affords us no corresponding 
advantage. Not a word has been uttered or printed 
in that countrj^ so far as is known, against the Cana- 
dian contention, or in support of that of the United 
States. The suggestion that the government might 

446 



THE BERING SEA CONTROVERSY 

be prejudiced in conducting the discussion silences at 
once the tongues and the pens of both parties. And 
if a new administration were to come into power, it 
would take up tliis subject where its predecessors 
left it, without anj- change of front whatever. 

The application made by the American government 
to Great Britain, when the depredations complained of 
began, for a convention, bv agreement of the countries 
interested, under which the capture of the seals should 
be regulated, was the pro[)er course to be taken. In- 
ternational courtesy required it, before proceeding to 
any abrupt measures. That reasonable patience and 
forbearance should be shown by the United States 
in giving time for such a proposal to be considered 
and acted on, and all needfid information regarding 
it to be obtained, was also an obvious propriety of 
diplomatic intercourse, which can rarelj' be expected 
to move rapidly. But five years have now passed 
awa}^ It is virtually settled that no such convention 
as proposed will take jilace, and that Great Britain 
will not interfere to defend the Alaskan seal fisheries 
against the operations of the Canadian vessels. Mean- 
while the destruction of seal life has gone on with such 
rapidity that, as already shown, four-fifths of its 
annual product is gone. If much more time is to be 
spent in discussion, the subject of the discussion will 
come to an end. If the United States government 
should now proceed temperately but firmly to put an 
end to the destruction of the seals in the breeding time, 
by preventing, through such exertion of force as may 
be necessary, the further prosecution of that business 
by anj^ vessels whatever between Alaska and the 
Pribyloff Islands, can there be a question that such 

447 



ORATIONS AND ESSAYS 

a course would be completely justified? Is there any 
other alternative, except to submit to the speedy and 
final destruction of the seal and its dependent indus- 
tries? That this would lead to any collision with Great 
Britain is not to be apprehended. The question then 
presented to that government would be, not whether 
it should admit in a paper discussion that Canada 
is in the wrong, and agree to undertake the defence of 
the United States against that colony, but whether 
she is prepared to send an armed force to assist and 
support Canada in the work of destruction; a work 
which, as has been seen. Great Britain has never 
asserted to be right, has once promised to agree in 
suppressing, and has joined with Norway in suppress- 
ing in another seal fishery. And in face of the fact 
also that the business interests of Great Britain are 
more largely interested in the preservation of the seal 
than those of Canada are in the temporarjr profits 
of its extermination. It would be an aspersion upon 
that country, not warranted by its history nor by the 
character of its people, to suppose that its government 
would fight in support of a cause that it cannot defend 
as just. Great Britain would be relieved of an em- 
barrassment and an annoyance if the United States 
government would thus terminate a fruitless and un- 
profitable discussion, by the assertion in its own be- 
half of its plain rights, and cease importuning Great 
Britain to take that assertion upon herself. It would 
be derogatory to the dignity of our country to prolong 
such importunity after it is proved to be unavailing. 

Arbitration has been spoken of as a means of com- 
posing the dispute. But that has been already pro- 
posed by the United States, without success. The 

448 



THE BERING SEA CONTROVERSY 

offer has been met by a counter-proposal to arbitrate, 
not the matter in hand, but an incidental and collateral 
question. That resource is therefore out of the ques- 
tion. It would be easier to settle the controversy 
than to settle the points and preliminaries of an ar- 
bitration. Two things must concur to make an ar- 
bitration useful: first, that the question submitted 
should be the question at issue, whether the Canadians 
have or have not the right, as against the United States 
government, to do exactly what they are doing; and 
next, that pending the lingering progress of such an 
arbitration, the depredations in question should be 
suspended, so that the destruction shall not be ac- 
complished while it is being debated whether it shall 
take place. How far the arbitration of such a ques- 
tion is consistent with the honor and dignity of our 
country is an inquiry more consonant with the tradi- 
tions of earlier days than with the ideas of the present. 
Arbitration is just now the jianacea through which 
all swords are to become ploughshares. In time it will 
be seen whether it is a universal remedy, or whether, 
like numerous other panaceas which have from time 
to time engaged the attention of the world, it is only 
an alleviation, useful in certain cases. The present 
instance certainly goes to show that it is a resource 
more attractive in theory than available in practice. 

It is announced in the newspapers that an applica- 
tion has been made to the Supreme Court of the United 
States for a writ of prohibition to arrest further pro- 
ceedings in the case of a Canadian vessel condemned 
in a Court of Admiralty for violation of the act of Con- 
gress prohibiting the taking of seals in the Bering 
Sea. It has been stated on the floor of the House of 
2F 449 



ORATIONS AND ESSAYS 

Commons by one of her Majesty's ministers that this 
appHcation is at the instance of the Canadian govern- 
ment. And he carefully distinguished the questions 
involved in it from those which are the subject of dip- 
lomatic discussion. In this distinction he is un- 
doubtedly right. So far as can be understood from 
the published report, the onlj' questions that it would 
seem can be brought before the Court are, whether there 
is any act of Congress which reaches the case sought 
to be reviewed ; if there is, whether Congress exceeded 
its constitutional powers in passing it; whether the 
proceedings imder it have been in comiiliance with 
its provisions; and whether the case can be brought 
before the Supreme Court by this form of application. 
It is not intended here either to consider or to express 
an opinion upon any of these questions. It would 
be impossible to discuss them intelligently without a 
precise knowledge of the facts, circumstances, and pro- 
ceedings that will be laid before the Covnt. It would 
be useless, since the determination of the Court must 
prevail, whatever private speculations are indulged 
in. And it would be improper while the case is 
pending before the Court. In due time the questions 
will be decided, so far as is found necessary, and will 
be decided rightly. Nor is the effort to bring the case 
before the Court a just subject of criticism. The Court 
is open to all the world in a proper case and in a proper 
way. Whether the case and the way are such as 
rightly invoke its jurisdiction are points upon which 
all parties in interest have a right to be heard. Mean- 
while it is enough to say that the questions likely 
to be involved, so far as they can be anticipated by those 
not concerned in the litigation, do not bear upon the 

450 



THE BERING SEA CONTROVERSY 

inquiries that have been touched upon in these re- 
marks. Whether a vessel can be forfeited by decree 
of an Admiralty Court must depend on the statute 
under which the Court proceeds and the extent of its 
ai)plication. Whether existing legislation on the sub- 
ject may require to be supplemented, extended, or 
recast, in order to effect that result, may need to be 
considered. But the power of the government mean- 
while to protect the national interests against foreign 
uivasion, by such and so much force as may be found 
necessary in the emergency, is a [)ower incident to 
sovereignty, and to be exerted upon the responsibility 
and within the just discretion of the Executive. 

There are tliree methods by which the Bering Sea 
question can be settled, and by one or other of which 
it must soon be disposed of : first, by putting a stop 
without further debate to the dejiredations of individ- 
ual foreigners upon the breeding seals; second, by 
conceding to these foreigners the right to destroy 
the fishery, and withdrawing further remonstrance; 
third, by continuing the discussion with Great Britain 
of the abstract questions supposed to be involved, until 
the extermination of the seal is completed and the 
subject of the dispute thereby exhausted, for which 
we shall not have long to wait. If the last course is 
taken, the credit of it will be due less to the adminis- 
tration charged with the conduct of our foreign rela- 
tions than to the public sentiment which it repre.sents 
and by which it must be guided. 



V 



THE AGE OF WORDS 



THE AGE OF WORDS 

History has given names to many ages in the 
life of the M-orld ; ours is the age f)f \\'ords — those cheap 
and easy substitutes for thought: invented, the witty 
Frenchman said, to conceal thought; he might better 
have said, to conceal the want of it. Never since the 
creation has there come upon the earth such a del- 
uge of talk as the latter half of the nineteenth century 
has heard. The orator is everywhere, and has all 
subjects for his own. The writer stayeth not his 
hand bj' da}' or by night Every successive day 
brings forth in the English tongue more discourse 
than all the great speakers of the past have left behind 
them, and more printed matter, such as it is, than the 
contents of an ordinary librarv. Himian utterance 
has become so constant, so multiplied, diffused, re- 
ported, and repeated, so typed, stereotyped, telegraphed, 
published, and circulated ; all conceivable subjects 
are so discussed, considered, amplified, and recon- 
sidered, in si^eeches, books, pamphlets, magazines, re- 
views, and millions of newspai)ers, that there is no 
escape anywhere from the ceaseless flow. What- 
ever is, is attacked; whatever has been, is denied; 
whatever is to be, is loudly predicted ; whatever ought 
to be, is set forth by a thousand voices, each variant 

4.S.S 



ORATIONS AND ESSAYS 

from all the rest. Ready-made opinions on all topics 
are abundant and cheap and in ample variety. There 
is no longer an excuse for any man to be ignorant of 
anything, and whatever he ventures to believe or dis- 
believe, he equally sins against light. Invention is 
exhausted in multiplying the means of transmitting 
knowledge. We are stupefied by the diffusion of in- 
telligence, and lose our eyesight under the excessive 
glare of light. While the simple-minded wa3'farer, 
at a loss to know what he should attend to and what 
he should avoid, is bewildered and confounded by 
the very abundance of the argument that does not con- 
vince him, the literature he is unable to enjoj', the 
learning that profiteth him nothing, and the philosophy 
that conducts to no end. 

With the quantity of utterance its positiveness does 
not diminish nor its modesty increase. We no longer 
suggest, we assert ; we do not question, we denounce ; 
we imitate, in all market-places, the adjuration of the 
Mohammedan fig-seller, and cry the louder as our 
wares grow stale: "In the name of Allah and his 
Holy Prophet ' — words ! words ! How long the supply 
of material for so much deliverance may be expected 
to hold out, how long even the east wind of which 
so large a share of it is composed will continue to blow, 
is a question that cannot be answered. We certainly 
seem to be approaching the time when hardlj^ anything 
will be left to be said on any subject that has not been 
said before — perhaps many times over ; when all known 
topics will begin to be exhausted; when the num- 
berless discussions that never come to an end will 
have quite lost their interest, and the patient and over- 
burdened listeners and readers — few in comparison 

456 



THE AGE OF WORDS 

with the speakers and the writers— will be ready to 
exclaim, "To the making of manj- books there is no 
end"; yet "there is nothing new under the sun," in 
the language of men. 

It is reported that when a Chinese official was once 
a prisoner of war on a British ship, the oiTer was made 
by his captors to send on shore for any books he might 
desire, to lighten the hours of his captivit\'. The 
offer was declined by the mandarin, who gravely re- 
marked that he had already read all the books in the 
world that were worth reading. Maj' not the time 
be somewhere in the future when we shall, in like 
manner, refuse to listen any longer to the voice of the 
teacher, in the belief that we have already heard and 
read everything that is worth saying? 

The resources of the English language have been 
found to require expansion in order to afford a vehicle 
for all this discourse. There were not words enough 
in the "pure English undefiled" to meet the demand; 
because, as thought grows hazy, language needs to 
multiply. Words of clear and definite meaning do 
not answer the purpose where ideas are uncertai:i 
and obscure. A writer who is not quite sure what he 
is trj^ing to mean needs a verbiage adapted to his 
state of mind. So a vast increase of words has taken 
place, with many of which dictionaries struggle in 
vain, to the sad detriment of our vernacular and the 
much increased confusion of current ideas. In the 
compilation of the Oxford Dictionary, which under- 
takes to give an account of every word in the language, 
it is stated in the Edinburgh Review that thirty years' 
labor has produced one volume of 1240 closely printed 
quarto pages in triple columns, only containing words 

457 



ORATIONS AND ESSAYS 

beginning with the letters A and B, and that these 
number 31,254, including those of doubtful meaning 
and of no meaning at all. At what remote period is it 
reasonable to expect that this work will be completed? 
And when finished, what, at the same rate of increase, 
will be the supplement to be added, of new words coined 
in the meantime? 

But seriously, and in the most sober prose, con- 
sider for a moment how enormous, beyond human 
power of calculation, is the product of the printing- 
press at the present daj", and how rapidly- it is every 
year increasing, in all its forms and departments. 
Regard, in the first place, what is only a small part 
of it, the number of books that have been published 
in our tongue in the last forty j-ears. Statistics of 
their quantitJ^ if it were possible to compile them, 
would be startling. They cover, in an endless flow 
and repetition of words, ever3^ topic that is within the 
compass of hinnan apprehension, in all views, right 
and wrong, that can be taken of it. That among this 
vast mass are to be foiuid a considerable number of 
good books, additions in one way or another to the sum 
of useful knowledge or to the means of rational mental 
enjoyment, is not to be questioned. But how large 
is this number? What proportion does it bear to the 
whole? By how much of the remainder is the world 
or any part of it the wiser, the better, or the happier? 
How considerable a share of it is even positively mis- 
chievous in its effect upon the popular mind, in the false 
taste, erroneous ideas, and unworthy prejudices it gen- 
erates. And how certainly does the lapse of twenty 
or even ten years consign the great bulk of it to oblivion. 
The past literature of our language is splendid and 

458 



THE AGE OF WORDS 

unsurpassed. The race that produced it has now 
swelled in this country alone to nearlj' sixty -five 
millions. We boast loudly of our largely increased 
machinery for education, our monstrous and nu- 
merous libraries, our extraordinary spread of intelli- 
gence, our immense advances in learning and knowl- 
edge, our wide range and extension of thought; we 
lay the \\'hole world under contribution, and jjrint a 
thousand volumes where those who gave us our per- 
manent literature printed one— and yet, in the whole 
of it, what and how many real additions have we made 
to that literature? Who and how many are the living 
writers who have contributed anything to it that will 
live in after-time, or whose names will be likely to be 
remembered when they have been fifty years dead? 
Where are our poets, our dramatists, our historians, 
our essayists, our philosophers, our reall}' capable 
critics? 

These are questions that every one can answer for 
himself. It is the object of the jtresent suggestions 
to ask them, not to answer them, nor to challenge the 
claim to distinction that any person may think belongs 
to him. There can be no juster commentary upon 
current literature than results from taking a lantern 
and honestly searching for its great men among 
the multitude of its disciples. A few will doubtless 
be found — some of them beyond the iron gate of three- 
score j^ears and ten. But how few and far between 
in such a countless army of authors let each observer 
judge for himself. 

Popular literature nowadays consists in large part 
of fiction, of which the authors are more prolific than 
the Australian rabbit. Now, that fiction may be, to 

459 



ORATIONS AND ESSAYS 

a certain limited extent, one of the most charming as 
well as wholesome forms of literary production will 
not at this day be questioned. Poetry maj' be ex- 
pressed in prose as well as in verse. And how deftly 
in either form the golden thread of romance can be 
wrought by enchanted hands into the web of human 
life some names attest that always will be household 
words wherever the English tongue is spoken. But 
the everlasting repetition, through countless thousands 
of volumes, of the story of the imaginary courtship 
and marriage of fictitious and impossible young men 
and women; and when all conceivable incidents that 
could attend this happj' narrative are used up, and the 
exhausted imagination of the narrator refuses any 
further supply, then in their place an endless flow 
of commonplace and vapid conversation, tending to 
the same matrimonial result, until it is clear that the 
parties, if they were real, would talk themselves to 
death — this is the staple of what is now well called 
fiction, because it never could exist in fact. What a 
food for an immortal mind to live on, year in and year 
out, as its principal literary nourishment! And what 
sort of mental fibre is it likely to jiroduce? Is it from 
such nutriment that are to be expected the robust 
and vigorous masculinity that should belong to the 
American man, or the finer but equally healtlty and 
sound qualities that should distinguish the American 
woman? The taste for this kind of food is the morbid 
appetite produced by long nourishment upon pastry 
and slops. A healthy stomach would reject it. 

But though such a craving widely exists, and grows 
bj' what it feeds on, very much of the circulation of 
this kind of literature is due to the ingenious exer- 

460 



THE AGE OF WORDS 

tions of the publisher. Each successive production 
is " pushed " and " noticed " so as to be broujiht for its 
brief moment into the pubHc attention. For a few- 
days or weeks it is made to be more or less talked about 
and written about, before it is supplanted by a new 
and similar work of genius. Hundreds, and perhaps 
thousands, read the book because it is talked about, 
and thej' are ashamed to say they are not acquainted 
with it. Not to have read the " Washerwoman of the 
Pyrenees," or "The Jack of Trumps," or "Peter's 
Wife's Sister," while they happen to be in vogue, 
would indicate a want of literary culture. So the 
reader who has no time to make acquaintance, and 
never does make acquaintance, with the really choice 
literature of his language, who only knows by name 
the great authors he has never read, toils in vain to 
keep up with the contents of his circulating library, 
which offers him a fresh bill of fare every month; 
quite unmindful that each one of these butterfly celeb- 
rities, after its nine days of popidarity, disappears 
and is heard of no more, altogether eclipsed by the 
equallj' ephemeral glitter of its successor. It is a 
very characteristic anecdote tliat is told of a young 
ladies' seminarj^ in England, whose pupils, being 
asked who is the greatest writer in the English lan- 
guage, unanimously named Shakespeare; being next 
inquired of who was their favorite author, replied, by 
a large majority, "Edna Lvall. " 

It is undeniable that, outside of a certain limited 
class of scholarly and thoughtful people, the great 
majority of all who read anything except the news- 
papers, read books of this description. The statistics 
of popular and circulating libraries show that seventy- 

461 



ORATIONS AND ESSAYS 

five per cent, of all the books taken out are novels of 
recent production. A library for the general public 
that did not furnish them could not be sustained, what- 
ever real treasures of knowledge and literature it might 
offer. Probably the most nimierous readers of novels 
are to be found among women, perhaps because they 
have more time and fewer other diversions than men. 
In the large class of them who derive their ideas of 
life and of the world from this source, the result is seen 
in the enormous and increasing business of the divorce 
courts, of which they and their husbands are the 
principal patrons. Aside from the loose and vague 
notions of morality that become familiar to them, 
unconsciousl}', from the books the}' read, they enter 
upon married life with ideas and expectations so false 
and theories so absurd that nothing but disappoint- 
ment and luihappiness can follow. Instead of the im- 
possible and self-sacrificing heroes of their dreams, 
they awake to find themselves married only to men, 
vvith the imperfections conmion to humanity. They 
perceive that the perfection they are in search of is to 
be found in other women's husbands, not in their own; 
on which point they would be speedily undeceived if 
they could exchange situations with their apparently 
more fortunate sisters. It is not long before both 
parties to a union that has proved a disappointment 
are ready to escape from it ; or, if not, one or the other is 
determined to break away. It is probable that all 
other causes put together are not so prolific of divorce 
among the class in which it commonly takes place 
as the fact that its women are brought up on novels 
of a low grade as their habitual and almost only reading. 
To the heterogeneous mass of bookmaking outside 

462 



THE AGE OF WORDS 

of fiction that is poured out upon us, it is hardly neces- 
sary to advert. He who runs may read it, though for 
the most part he had much better not. Much of it 
is characterized by haste, superficiaHty, and redun- 
dancy of words which the writers lack the time and 
the thought necessary to condense; which often woidd 
not repay condensation, or would disappear in the 
process. Speculation on all subjects, too hazy for 
comprehension, spurious philosoi)hy, theology that is 
religion's worst enemy, political science invented to 
serve the ends of a party or to cater to a popular prej- 
udice, useless erudition in all its numerous depart- 
ments, catchpenny treatises and compilations made to 
sell, or to air the cranks of their authors or further 
their ambition for notoriety — all the forms and infinite 
variety of "books that are not books." Among its 
best features are the writings that elucidate i)hvsical 
and scientific discovery. That it presents other ex- 
cellent exceptions to its general quality only makes 
that the more apparent. 

Book-making has become a trade. Profit is its 
chief end. The day of studious and self-denying lives 
devoted to studj^ and to thought, and regardless of 
gain, is almost gone by. Literature is no longer 
"cultivated upon a little oatmeal," nor for its own 
sake on any fare. Men do not write because they are 
charged w^ith a message to humanity that has been 
mellowed and tempered by long reflection, by com- 
munion with nature and the higher influences of the 
soul. To catch the ear of the public by a lucky hit 
or device, to take a popular tide at the flood, to dash 
ofT something or compile something that will .sell, and 
if a success of this sort attracts attention to the name 

46.3 



ORATIONS AND ESSAYS 

of a writer, then to push it for all it is worth by the most 
rapid production possible of whatever the name may 
make a market for — this is the trick and art of what is 
called literature. Reputation depends on good manage- 
ment much more than on merit. Not so were the en- 
during achievements of the human intellect brought 
forth. They were not the product of any age of words. 
They came chiefl}^ out of the great silences, when 
thought was mightier than speech, when words were 
few but fit. There has been noise enough always in 
the world, no doubt, and it has died away for the most 
part into everlasting stillness. It is only the silences 
that have become vocal, whose voices remain and will 
remain. 

The great profusion and variety of utterance, the 
jargon of many tongues, are not favorable to the pro- 
duction of mental work of the highest order. Such 
a voice will not be heard or waited for in the general 
confusion. If some of the greatest performances that 
have taken place in literature were now for the first 
time to be brought out, it is questionable whether they 
would gain any general attention, and whether they 
would not be quite oversloughed and cast into the shade 
by the loudly puffed productions of the ephemeral 
writers of the time. 

The nation maintains at Washington, at vast ex- 
pense, a printing-machine that turns out hundreds 
of tons of books annually. But there is rarely one 
among them of the slightest value or interest to any 
rational being: long-drawn-out and ostentatious re- 
ports of what nobody wants to know; endless "docu- 
ments " that nobody- reads ; tables unlimited of useless 
knowledge ; Congressional speeches that had no hearers 

464 



THE AGE OF WORDS 

and find no readers. No library could contain them 
—only the paper-maker has use for them. They 
are fit contributions to an age of words. 

But, as has been remarked, books, in all their profu- 
sion and with all the pamphlets and periodicals added, 
form only a small part of the product of the modern 
press. They are but a handful beside the nudtitude 
of newspapers that no man can number, which over- 
spread every part of the land and fill even its remotest 
nooks and crannies. In every new frontier settle- 
ment the first institution is a whiskey saloon, and 
the next a newspaper. Compared with the resounding 
clamor of their discordant cries, ceaseless b}^ day or 
by night, all other printed words are only as a few- 
scattered voices in a general Babel. That we are 
fortunate in the possession of some newspapers, both 
in city and country', which well discharge their proper 
office, and are conducted with dignit}-, decorum, 
ability, and usefidness, all will concede. But as in 
the matter of books, the question is, how many are 
of this stamp, and what relation do they bear to the 
whole? And what are the adjectives that jjroperly 
describe the rest? Description, indeed, is unneces- 
sary, because the knowledge of it is already notorious 
and universal. No thoughtful or educated person 
needs to be told what are the qualities of the mass of 
American newspapers, with the creditable exceptions 
already referred to: whether they are high or low in 
intellectual ability and in tone, in what language tliey 
are usually expressed, whether they .seek to enlighten 
and guide public opinion, or to follow its worst aber- 
rations and cater to its lowest instincts; whether they 
attempt to discuss with fairness and candor the merits 
2G 465 



ORATIONS AND ESSAYS 

of controverted questions, or whether the_v depend 
upon misrepresentation of facts, upon cheap gibes, 
and appeals to the meanest prejudices ; whether or not 
they observe the truth, respect private character and 
the decencies of hfe; whether, in short, they serve, so 
far as they go, to instruct, to improve, to elevate their 
readers, or only to delude and debase them, are in- 
quiries that thoughtful men can answer from their 
own observation. If they can be generally answered 
favorably, so much the better for the newspapers, and 
so much the worse for those who venture to question 
their character and their influence. 

One thing, at least, must be generally admitted — 
the newspapers have put an end to all human privacy. 
There is no man so obscure, so unassiuning, so utterh' 
withdrawn from the public eye and from all challenge 
of popular attention, who has the right to a conceal- 
ment of any act or fact or word or thought of his own 
private life if it will make an item, or, especially, if it 
be one from which, by any misrepresentation or gloss, 
a sensational story can be made and sold. The re- 
porter is omniscient and omnipresent. If we take the 
wings of the morning and fly to the uttermost parts 
of the sea, he is there before us, insatiable, rapacious, 
remorseless. His theory is that every circumstance 
and incident in every man's and woman's life is the 
property of the public if it can be made to minister to 
the appetite for scandal or idle gossip or the pleasure 
of the base in the humilation or discredit of those above 
them. With him, sorrow commands no charity, mis- 
fortune no consideration, age no reverence, woman 
no deference, death no solemnity, the grave no refuge. 
Nothing is so pathetic or so pitiful as to appeal to him 

466 



THE AGE OF WORDS 

for forbearance. Humanity has no rights that he is 
bound to respect. The only (lueslion is, will the story 
sell, if sufficiently distorted, exaggerated, and dressed 
up? 

If a man conmiits a crime he cannot reasonably 
ask that the newspapers should help him to conceal it. 
If he is in official station, or in any maimer invites or 
challenges attention to himself or his affairs, he may 
justly expect criticism and publicity. But in no other 
country than ours is the idea tolerated that private 
and unoffending life can have no secrets; that the 
skeleton in every closet is to be put on exhibition for 
the prolit of the thief who is clever enough to steal it. 

Not a less prominent feature in much that is called 
journalism is the habitual and wanton defamation 
of personal character. Libellous abuse, especially 
of political opponents, or of any individual who has 
in any way provoked the hostility of the manager, 
is so common and constant as to attract comparatively 
little attention. ]\Iany a journalist would laugh at 
the suggestion that he should refrain from the publica- 
tion of a malicious and defamatory story concerning 
the candidate he seeks to defeat merely for the reason 
that' the story is a falsehood. He would probably 
reply, in the slang of the trade, that " it is a good enough 
Morgan until after the election." There is no law of 
libel in this country, except iir theory. Practically, 
it has no force. The newspapers are strong enough 
to make it virtually powerle.ss. The peculiar kind 
of legal talent that is always available when anything 
especially base is to be defended is quite able to make 
the remedy of the plaintiff much worse than the injury 
comi)lained of, and no man resorts to it twice. 

467 



ORATIONS AND ESSAYS 

But these are offences against the individual cliiefl}^, 
except so far as they tend to debase the popidar taste 
and blunt the sense of what is due to private rights. 
A more serious mischief to the public is to be found in 
the unclean and repulsive sensational narratives with 
which so many columns of papers of this class are 
filled : the criminal, obscene, and demoralizing incidents, 
which, bad enough when merely reported as part of 
the news of the day, are spun out, elaborated, and re- 
peated with an infinite variety of disgusting and un- 
wholesome detail ; the lives and conduct of the criminal, 
the vicious, and the profligate; the most unsavory 
of the contests in courts of justice, amplified and 
adorned — all that panders to the morbid and depraved 
taste. 

That this material sdls freely is true. There is no 
merchandise so profitable as garbage. Publishers 
would not print it if a certain large class of readers 
did not demand it. No one becomes a purveyor of 
garbage for the mere pleasure of handling it. In the 
language of Colonel Sellers, "There are millions in 
it." But it is not the less debasing, and to the cleanly 
sense offensive. There can be no question that the 
publication of the sickening details of murder and 
suicide in such prominence and redinidancy of de- 
scription does contribute ver}' much to the increase of 
crime of that sort. There is a contagion in such things 
among weak, morbid, insane, and unbalanced minds. 
Those skilled in mental disease recognize and under- 
stand this as one of its manifestations. It is fre- 
quently observed that one homicide or suicide of 
peculiar and startling circumstances produces an 
epidemic, and is followed by others of a like descrip- 

468 



THE AGE OF WORDS 

tioii in various parts of the country. And the exploits 
of highwaymen, robbers, and prize-fighters, gilded and 
glorified, turn many a juvenile brain astray. 

Turning from the press to the orator, the other great 
instrument in the overflow of words, it is to be ob- 
served that the amount of speech-making on all sorts 
of occasions and all kinds of subjects has increased 
beyond the fashion of former times, in nearly the same 
ratio as the outpouring of the press. For this, indeed, 
the press is largely responsible. The custom of re- 
porting, after some fashion, speeches the most ordi- 
nary and commonplace, a weariness often to the hearer 
and of no interest to anybody else, has set thousands 
of tongues a-wagging for the glory of getting into 
print. They are reported, not because they are of any 
importance, but because the daily necessity for material 
to fill up the newspapers is often urgent, and must be 
supplied from all available quarters, at whatever ex- 
pense of dulness or inaccuracy, when more interesting 
news does not transpire. 

But the same influence that has so stimulated ora- 
tory and increased its volume has at the same time 
diminished its quality by destroying its best element. 
The newspaper press has turned the orator into an 
essayist, and usually a dull essayist at that. The 
essence of a good speech upon ordinary occasions is its 
adaptation to the tone and spirit of the surrounding 
atmosphere — its sympathetic touch with its hearers 
— the indescribable magnetism born of time, place, 
circumstance, and personality — the charm of utterance 
— the inspiration of the hour. Fox's remark that if a 
speech reads well it was not a good one had great truth 
in the day when speeches were speeches and not essays. 

469 



ORATIONS AND ESSAYS 

The speaker nowadaj^s cannot address himself to his 
audience, he must harangue Christendom through 
the next morning's papers; he is weighted all the 
time with the thought of how what he says will be made 
to read, and what will be said of it. The unhappy 
orator who, ignorant or forgetfid of the presence of 
the reporters, and relieved of the incubus of their 
anticipated butcher}-, takes his tone from the occasion 
— loses for the time the painfid self-consciousness 
which is the bane of public speaking — and speaks 
naturally, easily, and perhaps with feeling and earnest- 
ness the words that are given him, may make, so far 
as his immediate audience is concerned, a most suc- 
cessful and felicitous deliverance — quite the next best 
thing to silence. But his blood will run cold at the 
travesty that will appear next daj' in print, when a 
reporter's misunderstanding of it has been condensed 
into reporters' English. Its \\it, its humor, its point, 
its effectiveness, its eloquence if it chanced to rise so 
high, have all disappeared, and in their place comes a 
disjointed and incoherent jumble of platitudes, ex- 
pressed in the worst possible language. So to avoid 
being thus made ridiculous, he must write out and 
recite an article that he can give a copy of to " the 
press." Nothing can be more unlike than an essay 
for i)ublication and a speech, which, to meet the re- 
quirements of common occasions, should be in a great 
measure extemporaneous, at least in its language. 
The article may read fairly well; as a speech, it is 
prosy and artificial, wearisome to the hearers and 
without immediate effect. 

Any one who has attended a public dinner on those 
rare and delightful occasions when reporters are ex- 

470 



THE AGE 01' WORDS 

eluded, and has listened to the felicitous and often 
brilliant speeches born of the occasion and mellowed 
by the charm of the hour, not intended to be i)rinted 
nor possible to be printed, and has also been j)rescnt 
at another similar time when perhaps the same men, 
arraigned before the bar of the press and in danger of 
being set in the public pillory next day, have struggled 
as best they might with the difficulties of the situation, 
will quite appreciate the difference. On more than one 
sucli occasion speeches have been heard from eminent 
and distinguished men, with a feeling of disappoint- 
ment that they failed to rise to tlie spirit of the hour, 
or to touch the hearts or the sensibilities of their au- 
dience. The reason was that the speeches were not 
speeches. They were creditable but tame articles, 
written out beforehand for the inevitable newspajjer 
publication. 

The same reason that thus chills and paralyzes the 
sort of {)ublic speaking that to be successful needs to 
be extemporaneous has also its effect, though perhaps 
in a lesser degree, upon those more elaborate addresses, 
on important occasions, that are prepared in writing. 
Even in these the writer has constantly in mind, in 
their preparation, not his hearers, but his readers. 
So such productions, however excellent they might 
be as contributions to a review or magazine, become 
guarded, frigid, and tame, and the elements of true 
oratorv' they might otherwise contain are smoothed 
and polished away. 

The same cause has turned Congress, and even the 
British House of Commons, into mere talking-machines. 
"One weak, washy, everlasting flood" of useless and 
dreary speech-making runs through them, only oc- 

471 



ORATIONS AND ESSAYS 

casionally relieved by the voices of those quahfied to 
command and deserve attention, and renders the dis- 
charge of pubHc business even in Parhament extreme- 
ly difficult, and in Congress almost impossible. This 
would not be tolerated if, as formerl3^ these speeches 
were addressed to the houses where they are made 
instead of to the world at large. But a certain right 
to the "floor," for the purposes of buncombe, has be- 
come established by prescription and has to be sub- 
mitted to. Such speeches have for the most part few 
or no listeners, except the reporters. 

In the splendid days of parliamentary eloquence, 
when Pitt and Fox and Burke and Sheridan, and 
many other less celebrated but fit compeers of those 
great orators, drew the attention of the world to the 
House of Commons, reports of the debates were pro- 
hibited, and only to a small extent winked at. And 
so in the great period of our own Congressional oratory, 
speeches were made to the houses and not to the press. 
In language, but by no means in matter, they were 
extemporaneous. They were not only listened to, but 
were powerful in their effect. The report of them 
was a secondary consideration. When required for 
]3ublication they were written out by the author from 
such notes as he had, or such as had been taken at 
the time, instead of being written and even printed 
beforehand, and read to a small and inattentive house 
and empty galleries. 

While, therefore, we have plenty of clever and fluent 
speakers, to some of whom it is easier to speak than to 
be still, it is undeniable that it is the widespread publica- 
tion and reverberation of the spoken word that has 
almost extinguished true eloquence, and reduced it 

472 



THE AGE OF WORDS 

to the dead level of written dissertation, sometimes 
interesting and useful, but rarely great. That the 
pulpit has held its own better than other dei)artments 
of public speaking is because its occupants, with a 
few sensational exceptions, still address their congre- 
gations instead of preaching to the newspapers. 

Perhaps the most hackneyed of all hackneyed 
quotations is the remark of somebody who said that 
if he could write the songs of the people he cared not 
who made their laws. Despite its exaggeration, the 
saying had a certain truth in its time— when songs 
were written in the English tongue and expressed 
some intelligible idea, and were set to those sweet and 
simple melodies which modern musical improvement 
has succeeded in extinguishing. But if the songs 
of the people may be supposed to have an influence 
upon their character akin to that which the laws 
they live under exert, what nnist be thought of the 
effect upon them of their daily and habitual reading, 
and of the public utterances to which their attention 
is constantly compelled? It is probable that the great 
majority of men in this country who are able to read 
print read nothing but newsjiapers, and those not of 
the best, hi their instruction, the morning and the 
evening papers are tlie first day and the second day 
and all days. Of those who venture further in tpiest 
of mental nutriment, the greater part do not get be- 
yond the region of current fiction of the cheajjcr kind. 
And what other knowledge they have is derived from 
those who cry aloud in the streets continually. What 
harvest is it fair to expect to reap from this broadcast 
sowing of the wind? Surely it cannot make thought- 
ful, self-contained men, of independent ideas, individ- 

473 



ORATIONS AND ESSAYS 

uality of character, wholesome in sentiment, generous 
in sympathies, fit support for a government that rests 
upon the inteUigence of the mass of its people, and not 
upon its higher and more cultured class. So much 
babble would seem to be the very opposite of reflection. 
It is its natural effect to implant in such minds the 
demon of unrest, the craving for morbid and unnatural 
excitement, the unappeasable hankering after some- 
thing new; to make silence, their own thoughts, the 
solitude of nature, the seclusion of domestic life, the 
peacef ulness of husbandry, alike insupportable ; to im- 
pel them to run to and fro in the earth, to abandon 
quiet rural homes for the "centres of intelligence," 
and the simplicity of the country for the glitter and 
show of the city; to regard a genteel life as happier 
than an independent one, and "business" as more 
respectable than labor. 

If an intelligent stranger from some distant planet 
could be supposed to come near enough to us to hear 
only the clamor of perpetual and discordant words, 
fvdl of sound and fury, without having any knowledge 
of their effect, he might perhaps, in the simplicity of 
his heart, have grave misgivings about the outcome. 
He might expect in a nation so afflicted a gradual 
decline in popular taste and in moral tone. He might 
expect to find family ties loosened, religion decayed, 
iniquity in high places, and a false, unreal life in many 
homes where men were keei>ing up a show beyond 
their means. He might look to see legislatures be- 
come intolerable, juries suspicious, officials corrupt, 
votes bought for cash, public offices sold in the 
market; a system of education of which the main 
result was to teach the people to talk — not to think — 

474 



THE AGE OF WORDS 

and to dissatisfy them with the state of hfc to which 
it had pleased Heaven to call tlieni, without fitting them 
for a better; a universal and unscruf)ulous pursuit of 
money as the chief end and hope of humanity, and of 
office as its principal distinction ; a nearer and nearer 
approach in the minds of men towards that suj)rcme 
conception of the fool's heart: "There is no (iod. 
Science created the world, and science will be its re- 
deemer. 

Let us hope and let us believe, as far as we can, that 
this untaught and casual visitor would be altogether 
mistaken in his forebodings. Let us continue to as- 
sure and reassure each other that, if there exist anj- 
slight indications to the contrary, they are only trifles 
light as air, sure to disappear before the grand ad- 
vance of our intelligence and the progress of our in- 
stitutions. We are very fond of glorifying our time 
as the highest summit in all respects that human 
history has yet seen. A thousand bludgeons of the 
press would leap from their brief repose to annihilate 
the pessimist traitor who shoidd be so dislo3'al to the 
age he lives in as to see in it, and much more to speak 
of, any blemish or sorrow that universal democracy 
cannot cure. In regard to all material advancement, 
prosperity, and discovery, we are no doubt well justi- 
fied in the superiority we pride ourselves upon. But, 
after all, ma^' it not be possible that the story of Babel, 
like so manj^ passages in history that portray the decay 
of nations, may some time repeat itself, and that the 
great multitude who with unquestioning confidence 
are building the tower that is to scale heaven may be 
discomfited and scattered by the confusion of tongues? 
Whether that could ever be or not, one truth must 

47.S 



ORATIONS AND ESSAYS 

meanwhile command general assent — that the lan- 
guage of a nation, and the use that is made of it, are 
at once the best evidence of the character of its civiliza- 
tion and the most powerful influence in creating it. 



THE END 



By G. W. E. RUSSELL 



COLLECTIONS AND RECOLLECTIONS. By One 
Who Has Kept a Diary. With One Illustration. 
Crown 8vo, Cloth, Ornamental, Deckel Edges and Gilt 
Top, $2 50. 

It does not often happen that a volume of reminiscences pre- 
sents so much interesting and attractive matter. ... It is difficult 
to lay aside a book which contains so much of the salt which sea- 
sons life. Such a volume is a never-failing resource for the reader 
wearied of overmuch feeding on the solid viands of literature. 
Especially commendable is the spirit of kindness which pervades 
the narratives. There are no flings at living pygmies or dead 
lions. — Brooklyn Eagle. 

THE RIGHT HONORABLE WILLIAM EWART 
GLADSTONE. ( Queefi's Prime-3Iinisters.) Portrait. 
Crown 8vo, Cloth, %l 00. 

Mr. George W. E. Kusscll, who writes this book, has done a 
difficult task well. The personal biography is n>.,cessarily brief, 
because the plan of the book calls for a political biography, and 
because Gladstone entered public life at tweuty-two, and has lived 
and breathed the air of Parliament ever since. Yet it would not 
be possible to measure his public career justly without that knowl- 
edge of his personality and his ingrained tastes. Mr. Russell has 
provided the needful information in a succinct form, and his final 
chapter, in which he analyzes Mr. Gladj>tone's character, is elo- 
quent in its restraint and vigor of touch. — Atlantic Monthly. 



HARPER & BROTHERS, Publishers 

NEW YORK AND LONDON 

■ Either of the above works will be sent by mail, postage pre- 
paid, to any part of the United States, Canada, or Mexico, on receipt 
of the price. 



By FELIX STONE MOSCHELES 



FRAGMENTS OF AN AUTOBIOGIIAPIIY. Illus- 
irated with Photogravure Portraits. 8vo, Cloth, 
Uncut Edges and Gilt Top, $2 50. 

Mr. Moscheles writes in a light and cheerful strain tlmt wins 
the confidence of the reader. — Athena'um, London. 

The book is delightful from first page to last, and is one of tb« 
few books that the reader feels is not liuij;' enough. — Saturday 
Etening Gazette, Boston. 

Mr. Moscheles is not only a gifted painter and musician, but a 
literary artist as well. There's a charm about the book tliat will 
appeal to all. — Journal, Albany. 

IN BOHEMIA WITH DU MAURIER. With 63 orig- 
inal drawings by George dct Maukiku. ^•'vo. Cloth, 
Ornamental, Uncut Edges and Gilt Top, ^2 .50. 
The book is interesting, not only because of its aullior and 

artist, but also because it casts side-lights on the surroundings, if 

not on the personality, of that latter-day lieroine of fiction and the 

foot-lights — Trilby. — Speaker. London. 

Few books more interesting as human documents h.ive been 

published than "In Bohemia willi l)ii Maurier." — Bouk Buyer, 

N. Y. 



HARPER & BROTHERS, PuBLiSHiiiKS 

NEW YORK AND LONDON 

\^' Either of the above worku will be sent hy mail, jostage prepaid. 
to any part of the United States. Canada, or Mtixio.\ on receipt of the 
price. 



BISMARCK'S AUTOBIOGRAPHY 



BISMARCK, The Man and the Statesman : Being the 
Reflections and Reminiscences of Otto, Prince von 
Bismarck, Written and Dictated by Himself after his 
Retirement- from Office. Translated from the German 
under thvj Su])ervision of A. J. Butler, late Fellow of 
Trinity College, Cambridge. Two Vols. With Two 
Photogravure Portraits. 8vo, Cloth, Ornamental, Un- 
cut Edges and Gilt Tops, $7 50. 

In liis reflections and reminiscences. Prince Bismarck presents 
himself in Ibe more familiar garb of polite society, with the 
polished mauacT of a m:iu of the worhl, keeping his tongue under 
control, a great and commanding figure, self-centred and self-re. 
strained, a courtier and a statesman, filling not unworthily with 
his gigantic personality the world -stage on which he moved. — 
London Times. 

The book is remarkably full as regards internal affairs and espe- 
cially as regards the influences which prevailed at the Berlin court, 
as to tlie characters both of tlie kings of Prussia and the other men 
with whom Bismarck was brought in contact, and it contains a 
minute criticism on the workings of the Prussian and German 
Constitutions. — London DaUji Clironicle. 

This is a great work, one of the most important produced in 
modern times. It is a work gloriouslj' full of great liglits, and 
carries the study of the founding and founded empire and its in- 
ner motives on through the Culturkampf down to the last days of 
the lamented Frederick I. — Independent, N. Y. 



HARPER & BROTHERS, Publishers 

NEW YORK AND LONDON 

^^Tfie above work will be sent by mail, postage prepaid, to any 
part of i?ie United Slates, Canada, or Mexico, on receipt of the jyrice. 



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